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ENCYCLOPAEDIA 


OF   THE 


LAWS    OF    ENGLAND 


VOLUME   XIII 


EDITORS 


A.  WOOD  RENTON,  Esq.,  Puisne  Justice  of  the  Supreme  Court 

OF  Ceylon 

MAX.  A.  ROBERTSON,  Esq.,  of  the  Inner  Temple  and  the 
Midland  Circuit,  Barrister-at-Law 


Printed  by  William  Grbun  &  Fonf,  Edinburgh 
November  1 908 


EIS^CYCLOP^DIA 


OF  THE 


LAWS   OF   ENGLAND 

WITH    FORMS    AND    PRECEDENTS 


BY  THE 


MOST  EMINENT  LEGAL  AUTHORITIES 

SECOND  EDITION 
KEVISED  AND  ENLARGED 


VOLUME  XIII 
REVIVOR    TO    TASMANIA 


A 


LONDON   AND    EDINBURGH 
SWEET  &  MAXWELL,  LTD.,  AND   WM.  GKEEN  &  SONS 

AGENTS  FOR  CANADA 

THE    CANADA    LAW    BOOK    COMPANY,    LTD. 

32-34  Toronto  Street,  Toronto 

AGENTS  FOR  THE  UNITED  STATES 

THE  CROMARTY  LAW  BOOK  COMPANY 

1112  Chestnut  Street,  Philadelphia 


Digitized  by  tine  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/encyclopaediaofl13jacouoft 


THE  AUTHOES  OF  THE  PEINCIPAL  AETICLES  IN  THIS 
VOLUME  AEE   AS    FOLLOWS:— 

[Sqiiare  brackets  indicate  that  the  article  has  not  been  revised  by  the  original  author. 
In  these  articles  square  brackets  throughout  the  text  indicate  new  matter  added 
to  the  original  article.'\ 

An  asterisk  (**)  indicates  that  Forms  or  Precedents  are  appended  to  the  article. 

Bhodesia.— Alexander  Pulling. 

Riot.—W.  F.  Craies. 

Ritual. — C.  S.  Jackson.    [J.  S.  Henderson.] 

Bivers  Conservancy. — Urquhart  A.  Forbes. 

Bivers  International. — Sir  Thomas  Barclay,  Knt.    [G.  H.  B.  Kenrick.] 

Bivers  Pollution. — J.  V.  Vesey  FitzGerald,  K.C. 

Boman  Catholic. — G.  B.  M.  Coore.    [J.  S.  Henderson.] 

Boyal  Charter. — J.  S.  Henderson. 

Boyal  Family.— J.  E.  R.  V.  Stephens.     [Geoffrey  Ellis.] 

Boyal  Supremacy. — G.  G.  Phillimore. 

Bule  of  the  Boad.—C.  E.  Lloyd.    [N.  G.  L.  Child.] 

Rules;  Bules  of  Court. — C.  Burney,  one  of  the  Masters  of  the  Supreme  Court  of 
Judicature. 

Bussia. — Alexander  Pulling. 

St.  Lucia. — Alexander  Pulling. 

8i.  Vincent. — Alexander  Pulling. 

Sale  by  the  Court. — C.Burney,  one  of  the  Masters  of  the  Supreme  Court  of  Judi- 
cature. 

Sale  of  Goods. — W.  Bowstead. 

Salmon  Fishery. — W.  F.  Craies. 

Salvage. — G.  G.  Phillimore. 

Savings  Bank. — Urquhart  A.  Forbes. 

Schoolmaster  and  Pupil. — W.  Bowstead. 

Scire  Facias. — F.  H.  Short,  of  the  Crown  Office. 


vi  LIST  OF  AUTHOES 

Scotland.— R.  Campbell.    [James  Macdonald,  of  the  Scotch  Bar.] 
Scrutiny. — G.  H.  B.  Kenrick. 
Sea  Fisheries.— Q.  Q. 'Phillimore. 

Seaman. — G.  G.  Phillimore.  ' 

Searches.— Cecil  C.  M.  Dale.     [Geoffrey  Ellis.] 
Search  Warrant. — ^W.  F,  Craies. 
Secretary  of  State.— J.  P.  Wallis.     [Geoffrey  Ellis.] 
Security  for  Costs.— E.  A.  Wurtzburg. 
Sedition;  Seditious  Words.— W.  Blake  Odgers,  K.C. 
Seduction. — W.  F.  Craies. 

Service  and  Delivery.— ¥.  A.  Stringer,  of  the  Central  Office. 

Service  out  of  the  Jurisdiction.— C.  Burney,  one  of  the  Masters  of  the  Supreme  Court 
of  Judicature. 

Set-off.— W.  Bowstead. 

""^Settled  Land  Acts  and  Powers  in  Real  Property  Settlements.— 3 .  S.  Vaizey.    (Forms  by 
C.  Johnston  Edwards.) 

"^^Settlements ;  Settlements  of  Property.— i.  S.  Vaizey.    (Formsby  C.Johnston  Edwards.) 

Sewers,  Commissioners  of — S.  H.  Leonard. 

Seychelles. — Alexander  Pulling. 

Sheriff.— W.  F.  Craies. 

Shipping  Inquiries  and  Courts. — G.  G.  Phillimore. 

Ship;  Shipowners. — G.  G.  Phillimore. 

Shop ;  Shop  Regulation  Acts.—W.  Blake  Odgers,  K.C.,  and  E.  J.  Naldrett. 

Shorthand  Notes. — C.  Burney,  one  of  the  Masters  of  the  Supreme  Court  of  Judicature. 

Siam. — Alexander  Pulling. 

Sickness. — Patrick  Evans.     [Geoffrey  Ellis.] 

Sierra  Leone. — Alexander  Pulling. 

Slaughter-house. — J.  V.  Vesey  FitzGerald,  K.C. 

Slave  Trade.— Sir  Thomas  Barclay,  Knt.     [G.  H.  B.  Kenrick.] 

Solemnisation  of  Marriage. — W.  F.  Craies. 

Solicitor. — W.  Blake  Odgers,  K.C,  and  E.  A.  Wurtzburg. 

South  Australia. — Alexander  Pulling. 

Southern  Nigeria. — Alexander  Pulling. 

Sovereign. — G.  H.  Knott.     [A.  Wood  Renton,  Puisne  Justice  of  the  Supreme  Court 
of  Ceylon,  and  J.  S.  Henderson.] 

Spain. — Alexander  Pulling. 

Speaker  of  the  House  of  Commons. — Geoffrey  Ellis. 

Speaker  of  the  House  of  Lords.—  Geoffrey  Ellis. 

Special  Case. — C.  Burney,  one  of  the  Masters  of  the  Supreme  Court  of  Judicature. 

Special  Indorsemsnt. — F.  A.  Stringer,  of  the  Central  Office. 


LIST  OF  AUTHOES  vii 

Specific  Performance. — W.  D.  Eawlins,  K.C.,  with  tlie  assistance  of  the  Eight  Hon. 
Sir  Edward  Fry,  sometime  a  Lord  Justice  of  Appeal.     [W.  D.  Rawlins,  K.C.] 

Stamps;  Stamp  Duties.— F.  W.  Kingdon.  ■* 

State.— Sir  Thomas  Barclay,  Knt.     [G.  H.  B.  Kenrick.] 

Statutory  Order;  Statutory  Rules  and  Orders. — Alexander  Pulling. 

Stay  of  Proceedings.— W.  Blake  Odgers,  K.C. 

Stock  Exchange.— G.  H.  Stutfield. 

Stop  Orders.—  C.  Burney,  one  of  the  Masters  of  the  Supreme  Court  of  Judicature. 

Stoppage  in  Transitu. — W.  Bowstead. 

Straits  Settlements.— Alexander  Pulling. 

Street.— J.  V.  Vesey  Fitzgerald,  K.C. 

Striking  Out.—Y.  A.  Stringer,  of  the  Central  Office. 

Suhpcena.—Y.  A.  Stringer,  of  the  Central  Office. 

Sudan.— 'E  Bonham  Carter. 

*Sugar  Bounties. — Geoffrey  Ellis. 

Summary  Judgment  under  Order  14.— F.  A.  Stringer,  of  the  Central  Office. 

Summary  Jurisdiction. — W.  F.  Craies. 

Support.— J.  Lay  bourn  Goddard.     [N.  G.  L.  Child.] 

Supreme  Court.— T.  Snow,    [Geoffrey  Ellis.] 

*>Surname.—  Geoffrey  Ellis. 

Surrender. — Edgar  Fo^. 

Sweden.—  Alexander  Pulling. 

Switzerland. — Alexander  Pulling. 

Tacking.— W.  F.  Phillpotts.    [C.  Johnston  Edwards.] 

Tasmania. — Alexander  Pulling. 


ADDENDA   AHD  EBKATA. 


.     « 1 K  n  -R  D  ,"  read  "  15  ^^  f  •       _  p  p  592  •  affirmed, 

1.33,/or     o  486"rea(i"awt6,p.65.  ^       .0" 

vnl       IV   p.  683, 1. 12,  for  "  Vol.  IIL,  P-  4«^.        ,,  ..  ^  ^^^_  ^„.  c.  8,  s.  13. 

^^^-  \J^  -^fi  for  "  4  Edw.  VH-  c  8,  s-  -J.    ^«""'  ^     ^^  Marriages 

Vol.  XIII.  p.  145, 1.36  /or  ^  g^„^     a   ^«*«'^^^,';%^°  e  on  January  1, 

■n    424,   add  to  Puhhcation  oj  ^  ^,^^0  ^'^''^.^'Tn^  an  officer, 

1909,  and  P^^^^^^l^^^^^e  on  the  books  of  one  of  His  iviaj     y 
rXat°»Sw'S  on  board  that  sMp. 


ENCYCLOPEDIA 


01" 


THE    LAWS    OF    ENGLAND 


Revivor. — Under  the  former  practice  of  the  Court  of  Chancery, 
where  a  suit  had,become  defective  by  the  death,  marriage,  bankruptcy, 
or  other  transmission  of  interest  of  some  or  one  of  the  parties,  it  was 
said  to  have  abated,  and  in  order  to  obtain  the  benefit  of  previous  pro- 
ceedings it  was  necessary  to  commence  a  fresh  suit  by  tiling  what  was 
termed  a  bill  of  revivor.  This  costly  and  dilatory  procedure  was  con- 
siderably simplified  by  the  provisions  of  the  Chancery  Procedure  Act, 
1852,  15  &  16  Vict.  c.  86,  under  which,  upon  a  suit  becoming  abated,  an 
order  to  the  effect  of  the  usual  order  to  revive,  or  of  the  usual  supple- 
mental decree  was  obtainable,  of  course,  upon  allegation  of  the  facts 
rendering  the  application  necessary  (s.  52).  The  order  under  the  section 
was  usually  called  "  the  common  order." 

In  the  Courts  of  common  law  the  procedure  was  regulated  by  the 
provisions  of  the  Common  Law  Procedure  Act,  1852,  under  which,  where 
it  was  necessary  to  revive  a  judgment  by  reason  either  of  lapse  of  time, 
or  of  a  change,  by  death  or  otherwise,  of  the  parties  entitled  or  liable 
to  execution,  the  party  alleging  himself  to  be  entitled  to  execution  might 
either  sue  out  a  writ  of  revivor  or  apply  to  the  Court  or  a  judge  for  leave 
to  enter  a  suggestion  upon  the  roll,  to  the  effect  that  it  manifestly 
appeared  to  the  Court  that  such  party  was  entitled  to  have  execution 
of  the  judgment  and  to  issue  execution  thereon  (ss.  129-131).  The  same 
statute  (ss.  135-142)  contained  provisions  as  to  the  course  to  be  followed 
in  the  case  of  death,  marriage,  or  bankruptcy  of  any  party  to  an  action, 
pending  proceedings. 

The  Eules  under  the  Judicature  Acts  have  greatly  simplified  the 
procedure  in  all  the  divisions  of  the  Court. 

By  Order  17,  r.  1,  a  cause  or  matter  does  not  become  abated  by  reason 
of  the  marriage,  death,  or  bankruptcy  of  any  of  the  parties,  if  the  cause 
of  action  survives  or  continues,  and  does  not  become  defective  by  the 
assignment,  creation,  or  devolution  of  any  estate  or  title  pendente  lite ; 
and,  whether  the  cause  of  action  survives  or  not,  there  is  no  abatement 
by  reason  of  the  death  of  either  party  between  the  verdict  or  finding  of 
the  issues  of  fact  and  the  judgment,  but  the  judgment  may  in  such  case 
be  entered,  notwithstanding  the  death. 

The  rule  only  applies  where  the  cause  of  action  survives  or  continues 
in  some  person  who  is  before  the  Court  {Jackson  v.  North-Eastern  Rly. 
Co.,  1877,  5  Ch.  D.  844;  Eldridge  v.  Burgess,  1878,  7  Ch.  D.  411; 

VOL.  XIII.  1 


2  EEVIVOE 

In  re  Shephard,  Atkins  v.  Shephard,  1889,  43  Ch.  D.  131).  And  so, 
where  a  sole  plaintiff  or  defendant  dies,  marries,  or  becomes  bankrupt, 
the  action  becomes  abated  or  defective  {Eldridge  v.  Burgess,  1878,  7  Ch.  D. 
411).  So,  too,  where  one  of  several  plaintiffs,  each  having  a  separate 
cause  of  action,  dies  {Arnison  v.  Smith,  1889,  40  Ch.  D.  567).  But  where 
two  of  five  defendants,  jointly  and  severally  liable  to  the  plaintiff,  had 
become  bankrupt  it  was  held  that  the  action  might  proceed  against  the 
other  three  defendants,  without  bringing  the  trustees  in  bankruptcy 
of  the  two  bankrupt  defendants  before  the  Court  {Lloyd  v.  Dimmack, 
1877,  7  Ch.  D.  398). 

As  a  rule  actions  of  tort  in  respect  of  wrongs  done  to  or  by  a  deceased 
person  in  his  lifetime,  independent  of  contract,  do  not  survive  {Pulling 
V.  Great  Eastern  Ely.  Co.,  1882,  9  Q.  B.  D.  110;  Kirk  v.  Todd,  1882, 
21  Ch.  D.  484 ;  In  re  Duncan,  Terry  and  Sweeting,  [1899]  1  Ch.  387 ; 
Hatchard  v.  M^ge,  1887,  18  Q.  B.  D.  771 ;  Finlay  v.  Chirney,  1887,  20 
Q.  B.  D.  494;  Phillips  v.  Homfray,  1883,  24  Ch.  D.  439). 

"Where  through  a  tort  property  of  the  plaintiff  has  been  injuriously 
affected,  the  right  of  action  survives  (TVj^/cross  v.  Grant,  1874,  4  C.  P.  D. 
40 ;  Hatchard  v.  Mkje,  1887,  18  Q.  B.  D.  771 ;  Oakey  v.  Dalton,  1887, 
35  Ch.  D.  700).  And  so,  where  the  estate  of  a  deceased  tort-feasor 
has  benefited  by  his  wrong,  an  action  can  be  continued  against  his  repre- 
sentatives. See  Phillips  v.  Homfray,  1883,  24  Ch.  D.  439,  where  the  rule 
was  thus  stated  by  Bowen,  L.J. :  "  The  only  cases  in  which  apart  from 
questions  of  breach  of  contract,  express  or  implied,  a  remedy  for  a 
wrongful  act  can  be  pursued  against  the  estate  of  a  deceased  person 
who  has  done  the  act,  appears  to  us  to  be  those  in  which  property  or 
the  proceeds  or  value  of  property  belonging  to  another  have  been  appro- 
priated by  the  deceased  person  and  added  to  his  own  estate  or  moneys. 
In  such  cases,  whatever  the  original  form  of  action,  it  is  in  substance 
brought  to  recover  property  or  its  proceeds  or  value,  and  by  amendment 
could  be  made  such  in  form  as  well  as  in  substance.  In  such  cases  the 
action,  though  arising  out  of  a  wrongful  act,  does  not  die  with  the 
person." 

Where  the  alleged  cause  of  action  arose  out  of  a  statutory  duty  to 
the  deceased,  it  survives  to  his  executors  {Peebles  v.  Oswaldtwistle  Urhan 
District  Council,  [1896]  2  Q.  B.  159).  And  the  cause  of  action  survives 
where  the  wrong  committed  by  a  deceased  person  amounted  to  a  breach 
of  contract  {Batthyany  v.  Walford,  1887,  36  Ch.  D.  269). 

Order  17,  r.  2,  provides  that  in  case  of  the  marriage,  death,  or  bank- 
ruptcy, or  devolution  of  estate  by  operation  of  law,  of  any  party  to 
a  cause  or  matter,  the  Court  or  a  judge  may,  if  it  be  deemed  necessary 
for  the  complete  settlement  of  all  the  questions  involved,  order  that 
the  husband,  personal  representative,  trustee,  or  other  successor  in 
interest,  if  any,  of  such  party  be  made  a  party,  or  be  served  with  notice 
in  such  manner  and  form  as  by  the  rules  prescribed,  and  on  such  terms 
as  the  Court  or  a  judge  shall  think  just,  and  shall  make  such  order  for 
the  disposal  of  the  cause  or  matter  as  may  be  just. 

This  rule  only  applies  to  cases  where  there  is  a  transmissible  interest. 
If  the  estate  or  title  devolves  on  some  one  as  representing  the  original 
party,  the  action  may  be  revived,  but  there  must  be  a  devolution  of 
the  estate  or  title.  Thus,  where  a  husband  who  had  obtained  a  decree 
nisi  for  dissolution  of  his  marriage  died  before  the  time  for  making  it 
absolute  had  arrived,  it  was  held  that  the  legal  personal  representative 
of  the  husband  could  not  revive  the  suit  for  the  purpose  of  applying 


EEVIVOE  3 

to  make  the  decree  absolute  {Stanhope  v.  Stanhope,  1886  11  P  D  103) 
See  Terrall  v.  Carson,  [1899]  2  I.  R.  470.  '  '     '        >" 

By  Order  17,  r.  3,  it  is  provided  that  in  case  of  an  assignment,  creation, 
or  devolution  of  any  estate  or  title  pendente  lite  the  cause  or  matter 
may  be  contmued  by  or  against  the  person  to  or  upon  whom  such  estate 
or  title  has  come  or  devolved. 

Where  a  trustee  in  bankruptcy  commenced  an  action,  and  subse- 
quently sold  and  assigned  his  interest  in  the  subject-matter  of  the  action, 
and  the  assignee  claimed  to  carry  on  the  action  in  the  name  of  the 
original  plaintiff,  it  was  held  that  the  assignee  must  amend  the  title  of 
the  action  so  as  to  show  that  he  was  the  real  plaintiff,  and  to  introduce 
such  averments  in  the  statement  of  claim  as  would  disclose  his  title 
{Seear  v.  Lawson,  1880,  16  Ch.  D.  121). 

A  garnishee  order  absolute  in  favour  of  a  judgment  creditor  of  the 
plaintiff  IS  a  devolution  of  estate  by  operation  of  law  within  rule  2  and 
the  creditor  is  entitled  to  be  added  as  co-^\s.mim{Wallisv.Smith,  1882. 
51  L.  J.  Ch.  577). 

The  rule  does  not  entitle  a  plaintiff"  who  has  obtained  judgment 
against  a  defendant  to  enforce  such  judgment  against  the  defendant's 
successors  in  title.  He  must  commence  a  fresh  action  for  the  purpose 
{Attorney-General  v.  Birmingham  Corporation,  1880,  15  Ch.  D.  423). 

By  Order  17,  r.  4,  where  by  reason  of  marriage,  death,  or  bankruptcy 
or  any  other  event  occurring  after  the  commencement  of  a  cause  or 
matter,  and  causing  a  change  or  transmission  of  interest  or  liability 
or  by  reason  of  any  person  coming  into  existence  after  the  commence- 
ment of  the  cause  or  matter,  it  becomes  necessary  or  desirable  that 
any  person  not  already  a  party  should  be  made  a  party,  or  that  any 
person  already  a  party  should  be  made  a  party  in  another  capacity,  an 
order  that  the  proceedings  shall  be  carried  on  between  the  continuing 
parties  and  such  new  party  or  parties  may  be  obtained  ex  parte  on 
application  to  the  Court  or  a  judge,  upon  an  allegation  of  such  change 
or  transmission  of  interest  or  liability,  or  of  any  such  person  having 
come  into  existence.  ° 

In  the  Chancery  Division  the  application  is  usually  made  by  petition 
of  course  presented  at  the  Registrar's  office.  An  order  may  also  be 
obtained  on  a  motion  of  course.  Occasionally  the  application  is  made 
by  summons  at  Chambers,  in  which  case  it  must  be  supported  by  an 
affidavit  of  the  facts,  though  an  order  of  course  is  obtained  on  mere 
allegation. 

J^  or  forms  of  application  see  Daniell's  Chancery  Farms,  pp.  88  et  sea 
±or  forms  of  order  see  Seton,  pp.  113-115. 

In  the  King's  Bench  Division  the  application  is  made  ex  vaHe  to 
a  Master  upon  an  affidavit  of  facts. 

Though  proof  of  the  allegations  on  a  motion  of  petition  of  course 
IS  not  required,  the  order  may  be  discharged  if  erroneous  statements 
have  been  made  {Brignall  v.  Whitehead,  1861,  30  Beav.  229-  54 
E.  R.  876).  ' 

It  is  doubtful  whether  an  order  can  be  made  under  rule  4  after  final 
judgment,  when  the  action  is  at  an  end,  and  there  is  nothing  more  to 
be  done  under  it  (Arnison  v.  Smith,  1889,  29  Ch.  D.  567). 

Except  under  special  circumstances,  such  as  fraud  and  the  like  an 
order  ought  not  to  be  made  under  the  rule  for  the  mere  purpose  of 
appeahng  from  a  judgment,  after  the  time  for  appealing  has  expired 
{F2issell  V.  Bowding,  1884,  27  Ch.  D.  237).     There  is,  however,  a  dis- 


4  EEVIVOR 

cretion  in  the  Court,  and  in  the  exercise  of  such  discretion,  an  adminis- 
tration suit  which  had  become  defective  was  ordered  to  be  revived,  sO' 
that  an  order  made  therein  might  be  appealed  from,  although  no  step 
in  the  suit  had  been  taken  for  nearly  forty  years ;  the  Court  being  of 
opinion  that  no  person  had  altered  his  position,  or  suffered  any  loss, 
in  the  faith  of  the  order  from  which  it  was  desired  to  appeal  {Curtis 
V.  Sheffield,  1882,  20  Ch.  D.  398). 

Where  a  sole  plaintiff  has  died,  a  person  who  has  leave  to  attend 
the  proceedings  may  obtain  an  order  of  course  to  revive  {Bitrstall  v. 
Fearon,  1883,  24  Ch.  D.  126). 

The  rule  does  not  affect  the  equity  of  the  Statute  of  Limitations 
{Swindell  v.  Bulkeley,  1886,  18  Q.  B.  D.  250).  Inasmuch  as  a  judgment, 
whether  operating  as  a  charge  on  land  or  not,  is  barred  after  twelve 
years  (Keal  Property  Limitation  Act,  1874,  s.  8),  an  order  cannot  be 
obtained  under  the  rule  after  the  lapse  of  that  time  {Jay  v.  Johnstone,. 
[1893]  1  Q.  B.  189). 

The  effect  of  an  order  to  revive  against  the  trustee  in  bankruptcy 
of  a  defendant  is  to  place  such  trustee  in  exactly  the  same  position 
as  the  original  defendant  with  respect  to  the  proceedings  {Chorlton  v. 
Dickie,  1879, 13  Ch.  D.  160).  But,  where  a  defendant  who  had  delivered 
a  counterclaim  died,  and  the  plaintiff  obtained  an  order  for  revivor 
against  his  representatives,  it  was  held  that  such  order  did  not  authorise 
the  representatives  to  proceed  with  the  counterclaim,  and  that  if  they 
wished  to  do  so  they  must  obtain  an  order  against  the  plaintiff  for  the 
revivor  of  the  counterclaim  {Andrew  v.  Aitken,  1882,  21  Ch.  D.  175). 

Where  proceedings  have  been  taken  in  an  action  after  it  has  become 
defective  by  the  birth  of  an  infant  who  is  a  necessary  party  thereto,, 
the  infant  should  be  made  a  party  by  an  order  under  rule  4  to  carry 
on  proceedings  between  the  continuing  parties  and  the  infant,  and  the 
order  should  go  on  to  direct  an  inquiry  whether  any  proceedings  affecting 
the  interest  of  the  infant  have  been  taken  in  the  action  since  his  birth, 
and,  if  so,  whether  it  will  be  fit  and  proper  and  for  the  benefit  of  the 
infant  that  he  should  be  bound  thereby.  If  so  certified  the  infant  is 
bound  accordingly.  If  such  inquiry  be  answered  in  the  negative  the 
plaintiff'  or  person  having  conduct  of  the  proceedings  can  still  proceed 
by  supplemental  action  {Peter  v.  Thomas-Peter,  1884,  26  Ch.  D.  181). 

An  order  obtained  under  rule  4  must  be  served  upon  the  continuing 
party  or  parties  or  their  solicitors,  and  also  upon  the  new  party  or  parties, 
and  the  order  will  from  the  time  of  such  service  be  binding  on  the 
persons  served  therewith.  Every  person  served  with  the  order  who 
is  not  already  a  party  to  the  cause  or  matter  must  enter  an  appearance 
within  the  same  time  and  in  the  same  manner  as  if  he  had  been  served 
with  a  writ  of  summons  (Order  17,  r.  5). 

The  order  must  be  entered  at  the  Writ,  etc..  Department  of  the 
Central  Ofiice,  or  in  the  district  registry  if  the  cause  or  matter  is 
proceeding  there. 

Any  person  under  no  disability,  or  under  no  disability  but  coverture, 
or  being  under  any  disability  other  than  coverture,  but  having  a  guardian 
ad  litem,  may  apply  to  the  Court  or  a  judge  to  vary  the  order  within 
twelve  days  from  service  (Order  17,  r.  6).  Where  no  guardian  ad  litem 
has  been  assigned  to  a  person  under  disability  such  party  may  apply 
to  discharge  or  vary  the  order  within  twelve  days  from  the  appointment 
of  a  guardian  ad  litem ;  and  until  such  period  has  expired  such  order 
will  have  no  force  or  effect  against  him  (Order  17,  r.  7). 


EEWAEDS  5 

When  the  plaintiff  or  defendant  in  a  cause  or  matter  dies,  and  the 
cause  of  action  survives,  but  the  person  entitled  to  proceed  fails  to 
proceed,  the  defendant  (or  the  person  against  whom  the  cause  or  matter 
may  be  continued)  may  apply  by  summons  to  compel  the  plaintiff  (or 
the  person  entitled  to  proceed)  to  proceed  within  such  time  as  may  be 
ordered;  and  in  default  of  such  proceeding,  judgment  may  be  entered 
for  the  defendant,  or,  as  the  case  may  be,  for  the  person  against  whom 
the  cause  or  matter  might  have  been  continued,  and  in  such  case,  if 
the  plaintifif  has  died,  execution  may  issue  as  in  the  case  provided  by 
Order  42,  r.  23  (Order  17,  r.  8). 

Where  an  action  has  been  remitted  to  the  County  Court  an  appli- 
cation under  rule  8  must  be  made  to  that  Court  {Duke  v.  Davis,  [1893] 
2  Q.  B.  260). 

Under  Order  42,  r.  23,  where  any  change  has  taken  place  by  death 
or  otherwise  in  the  parties  entitled  to  or  liable  to  execution,  the  party 
alleging  himself  to  be  entitled  to  execution  may  apply  to  the  Court 
or  a  judge  for  leave  to  issue  execution  accordingly,  and  the  Court  may 
make  an  order  to  that  effect,  or  may  order  the  trial  of  any  issue  or 
question  necessary  to  determine  the  rights  of  the  parties. 

Leave  given  under  the  above  rule  to  issue  execution  against  the 
executors  of  a  deceased  judgment  debtor  does  not  operate  as  a  judgment 
against  the  executor.  It  dispenses  with  the  necessity  of  recovering 
judgment  against  him  {Stewart  v.  Rhodes,  [1900]  1  Ch.  386). 

It  is  doubtful  whether  execution  can  be  ordered  to  issue  against  the 
goods  of  a  deceased  judgment  debtor  without  notice  to  the  executor 
{In  re  Shephard,  Atkins  v.  Shephard,  1889,  43  Ch.  D.  131). 

[Authorities.  —  The  Annual  Practice;  Chitty's  Archhold's  Practice, 
14th  ed.,  1885,  pp.  1025-1038;  Daniell's  Chancery  Practice,  7th  ed., 
1901,  pp.  239-257;  Daniell's  Chancery  Forms,  5th  ed.,  1901,  pp.  87-95; 
Day's  Common  Law  Procedure  Acts,  4th  ed.,  1872;  Pemberton  on 
Revivor  and  Supplement,  1867 ;  Seton's  Judgments  and  Orders,  6th  ed., 
pp.  113-119.] 

Revocation. — The  undoing  or  calling  back  by  anyone  of  some- 
thing granted  by  him.  A  power  granted  or  reserved  to  revoke  an 
appointment  is  called  a  power  of  revocation.  See  Powers,  Vol.  XL, 
at  p.  388. 

Revocation  of  Agency. — See  Principal  and  Agent. 

Revocation  of  Will. — A  will  may  be  revoked — (1)  by  the 
marriage  of  the  testator ;  (2)  by  the  execution  of  a  subsequent  will  or 
codicil ;  (3)  by  some  writing  executed  in  the  same  manner  as  a  will, 
declaring  an  intention  to  revoke  the  same ;  (4)  by  burning,  tearing,  or 
otherwise  destroying  it  animo  revocandi  (Wills  Act,  1837,  ss.  18,  20). 
See  Will. 

Revolt. — See  Civil  War;  State. 

Revolution.— See  Civil  War;  State. 

Rewards.  —  l.  It  is  a  common  practice  to  offer  rewards  for 
evidence  tending  to  establish  a  particular  fact,  or  for  the  discovery  of 
a  missing  document,  or  of  entries  in  public  registers.     The  publication 


6  EEWARDS 

of  the  offer  is  a  general  offer  to  any  person  who  can  give  the  infor- 
mation asked,  and  acceptance  by  giving  the  information  creates  an 
enforceable  contract  (  Williams  v.  Carwardine,  1833, 38  E.  R.  328;  4  B.  & 
Ad.  621 ;  Carlill  v.  Carbolic  Smoke  Ball  Co.,  [1893]  1  Q.  B.  256). 

2.  The  Crown  is  always  free  to  give  rewards  for  assistance  in  the 
apprehension  or  conviction  of  offenders  against  the  law,  whether  the 
offence  be  an  ordinary  crime  or  a  breach  of  the  revenue  laws  (see 
Customs;  Excise;  Inland  Eevenue). 

The  offer  by  private  persons  of  rewards  for  evidence  tending  to 
prove  the  commission  of  a  crime,  or  to  facilitate  capture  of  the  offender, 
is  an  offer  to  all  the  world,  i.e.  to  all  persons  who  see  it  when  published ; 
and  if,  in  consequence  of  the  offer,  any  person  gives  evidence  leading 
to  the  result  suggested,  he  can  sue  for  and  recover  the  reward  (Tamer 
v.  Walker,  1866,  L.  E.  1  Q.  B.  641 ;  1867,  2  Q.  B.  301 ;  Bent  v.  Wake- 
field  and  Barnsley  Bank,  1878,  4  C.  P.  D.  1). 

The  offer  of  a  reward  is  illegal  if  it  is  on  terms  leading  to  com- 
pounding an  offence  or  sheltering  the  offender  (see  B.  v.  Burgess,  1886, 
15  Q.  B.  D.  141 ;  Hush  Money). 

To  advertise  a  reward  for  stolen  property,  "no  questions  asked," 
entails  a  forfeiture  of  £50,  recoverable  by  action,  which,  in  the  case 
of  an  advertisement  in  a  newspaper,  can  be  brought  only  by  leave  of 
the  Attorney-General  (24  &  25  Vict.  c.  96,  s.  102;  33  &  34  Vict.  c.  65; 
see  Mirams  v.  Our  Dogs  Publishing  Co.,  [1901]  2  K.  B.  564) ;  and  to 
accept  a  reward  for  recovery  of  stolen  property  without  bringing  the 
offender  to  trial  is  a  felony  (24  &  25  Vict.  c.  96,  s.  101),  except  in  the 
case  of  stolen  dogs,  in  which  case  it  is  a  misdemeanor  (24  &  25  Vict. 
0.  96,  s.  20). 

3.  Courts  of  assize,  oyer  and  terminer,  and  gaol  delivery,  are 
empowered  to  order  payment  of  rewards  in  the  following  cases: — To 
those  who  have  been  active  in  or  have  shown  extraordinary  courage 
and  diligence  or  exertion  towards  the  apprehension  of  persons  charged 
with  (1)  murder ;  (2)  feloniously  and  maliciously  shooting  at,  or  attempt- 
ing to  discharge  any  kind  of  loaded  firearms  at,  any  other  person ;  (3) 
stabbing,  cutting  {B.  v.  Piatt,  1905,  69  J.  P.  424),  or  poisoning;  (4) 
administering  anything  with  intent  to  procure  miscarriage ;  (5)  robbery 
of  the  person ;  (6)  arson ;  (7)  rape ;  (8)  burglary  or  feloniously  house- 
breaking; (9)  stealing  horses,  cattle  {B.  v.  Gillbrass,  1836,  7  C.  &  P.  444), 
or  sheep;  (10)  accessories  before  the  fact  to  any  of  these  offences;  and 
(11)  receipt  of  stolen  goods  (7  Geo.  iv.  c.  64,  s.  28;  and  see  19  &  20 
Vict.  c.  16,  s.  13 ;  25  &  26  Vict.  c.  65,  s.  11). 

The  power  was  in  1851  (14  &  15  Vict.  c.  55,  ss.  6,  7,  8)  extended  to 
Quarter  Sessions,  with  the  limitation  that  the  sum  awarded  must  not 
exceed  £5,  and  the  scale  of  the  rewards,  except  in  cases  of  extraordinary 
courage,  diligence,  or  exertion,  may  be  regulated  on  Home  Office  Order 
under  the  Act  of  1851  (Statutory  Eules  and  Orders  Eevised,  ed.  1904). 

By  7  Geo.  iv.  c.  64,  s.  29,  the  reward  is  payable  by  the  sheriff  on 
the  order  of  the  Court ;  and  the  sheriff  is  reimbursed  by  the  Treasury ; 
but  under  51  &  52  Vict.  c.  41,  s.  100,  seems  now  to  be  payable  from  the 
same  funds  as  the  costs  of  assizes  and  sessions. 

It  is  not  confined  to  rewards  for  expense  or  loss  of  time  in  capturing 
an  offender  {B.  v.  Barnes,  1836,  7  C.  &  P.  166);  and  may  be  given  for 
a  display  of  courage  or  address  in  the  capture  of  the  offender  {B.  v. 
Womersley,  1836,  2  Leon.  162 ;  B.  v.  Dunning,  1851,  5  Cox,  142).  Where 
any  person  is  killed  in  endeavouring  to  arrest  for  any  of  the  offences 


EHODESIA  7 

named,  compensation  may  be  ordered  to  his  widow,  or  to  his  children 
if  he  leaves  no  widow,  or  to  his  father  or  mother  if  he  left  neither  wife 
nor  child.  The  compensation  is  payable  in  the  same  manner  as  a 
reward,  but  is  subject  to  the  Home  Office  scale  (7  Geo.  iv.  c.  64,  s.  30). 
See  B.  V.  Platel,  1903,  38  L.  J.  Newsp.  273. 


Rhodesia. 


TABLE  OF  CONTENTS. 


I.  Rhodesia  Generally  .        .        .        7  1  HI.  North-Eastern  Rhodesia  .        .        9 
n.  Southern  Rhodesu    .        .        .        8  j  IV.  Noeth-Western  Rhodesu  .        .      10 

I.  Ehodesia  Genekally. 

Area.  —  Ehodesia  consists  of  three  British  protectorates,  viz., 
Southern  Ehodesia  (see  II.  below),  North-Eastern  Ehodesia  (see  III. 
below),  and  North-Western  Ehodesia  (see  IV.  below). 

The  whole  of  these  territories  are  bounded  on  the  north-east  by 
German  East  Africa  (see  German  Empire),  on  the  north-west  by 
the  Congo  Free  State  {q.v.),  on  the  west  by  Portuguese  West 
Africa  (see  Portugal)  and  German  South-West  Africa  (see  German 
Empire),  on  the  south  by  the  Bechuanaland  Protectorate  and  the 
Transvaal  (q.v.),  and  on  the  east  by  Portuguese  East  Africa  (see 
Portugal)  and  the  Nyasaland  Protectorate  {q.v.).  The  three 
Ehodesias  have  a  total  area  of  439,575  square  miles,  or  nearly  four 
times  the  size  of  the  United  Kingdom. 

The  three  protectorates  are  all  within  the  sphere  of  the  Charter 
of  the  British  South  Africa  Company,  but  both  administratively  and 
geographically  Southern  Ehodesia  belongs  to  British  South  Africa,  and 
its  manifest  destiny  is  to  be  welded  with  our  other  South  African 
dependencies  into  a  British  dominion,  whilst  the  two  less  developed 
Northern  Protectorates  form,  with  Nyasaland  {q.v.),  British  Central 
Africa. 

Earlier  History. — In  1888  Southern  Ehodesia  was  declared  to  be 
within  the  British  sphere  of  influence,  and  on  October  29,  1889,  the 
British  South  Africa  Company  obtained  a  Eoyal  Charter  (Hertslet's 
Treaties,  vol.  xviii.  p.  134)  granting  large  powers  of  administration  over 
the  territories  north  of  British  Bechuanaland,  north  and  west  of  the 
Transvaal  {q.v.),  and  west  of  the  Portuguese  dominions,  but  no  northern 
limits  were  fixed  to  the  Company's  possessions.  In  1893  a  raid  was 
made  by  the  Matabele  on  Mashonaland,  which  necessitated  an  advance 
into  Matabeleland  and  the  occupation  of  Bulawayo.  This  was  followed 
by  the  Matabeleland  Order  in  Council  of  July  18,  1894  (St.  E.  &  0., 
1894,  p.  133),  see  article  Protectorate.  In  1896  the  Matabele  rebelled, 
being  joined  by  the  Mashonas,  and  peace  was  only  secured  after  a 
protracted  struggle,  and  the  existing  Order  in  Council  of  October  20, 
1898  (see  below)  was  brought  into  force.  Meanwhile  the  Company 
kept  advancing  and  gradually  took  the  whole  of  Northern  Ehodesia 
into  their  sphere  of  operations.  Since  the  South  African  War 
Ehodesia  has  once  more  continued  to  make  progress. 

In  June  1905  the  western  boundary  of  Barotziland  was  found  by 
the  award  of  the  King  of  Italy  to  have  been  determined  by  the  Treaty 
of  June  11, 1891,  between  Great  Britain  and  Portugal.  For  the  articles 
governing  the  arbitration  and  repealing  Article  IV.  of  the  Treaty  of 

/ 


8  EHODESIA 

June  11,  1891,  see  the  Declaration  of  August  12,  1903  (Pari.  Papers, 
1907  (Cd.  3731)). 

II.  Southern  Ehodesia. 

Area. — Southern  Ehodesia  is  divided  from  the  two  Northern  Pro- 
tectorates by  the  Eiver  Zambesi,  and  has  an  area  of  148,575  square 
miles — being  nearly  half  as  large  again  as  the  Transvaal,  which  it 
adjoins.  It  is  divided  into  two  provinces — Mashonaland  and  Mata- 
beleland. 

Administration. — The  protectorate  is  now  administered  under  Order 
in  Council  of  October  20,  1898,  as  amended  by  Orders  in  Council  of 
February  2,  1899 ;  February  16,  1903 ;  August  10, 1904,  and  March  20, 
1905  (St.  E.  &  0.,  Eev.  1904,  vol.  v.,  "Foreign  Jurisdiction,"  pp.  115, 
135 ;  St.  E.  &  0.,  1904,  p.  186,  and  St.  E.  &  0.,  1905,  p.  118).  There 
is  a  Eesident  Commissioner  and  Commandant-General  appointed  by 
the  Secretary  of  State.  To  assist  the  Company's  Administrator  there 
is  an  Executive  Council,  consisting  of  not  less  than  four  members 
appointed  by  the  Company,  with  the  approval  of  the  Secretary  of 
State,  for  three  years.  The  legislative  authority  is  vested  in  a  Legis- 
lative Council,  consisting  of  the  Administrator  as  President,  seven 
members  nominated  by  the  Company  and  approved  by  the  Secretary 
of  State,  and  seven  members  elected  by  the  registered  voters.  The 
Eesident  Commissioner  has  a  seat  both  in  the  Executive  Council  and 
the  Legislative  Council,  but  has  no  vote.  Members  of  the  Legislative 
Council  are  in  office  for  three  years.  All  Ordinances  passed  by  the 
Legislative  Council  take  effect  when  assented  to  by  the  High  Com- 
missioner and  published,  but  they  may  be  disallowed  by  the  Secretary 
of  State  within  a  year. 

There  is  a  Secretary  for  Native  Affairs,  who  administers  the  Native 
Department,  and  who  is  assisted  by  two  Chief  Native  Commissioners  for 
the  two  provinces,  one  for  Mashonaland  and  one  for  Matabeleland. 
Each  province  is  divided  into  native  districts — eighteen  in  Mashonaland 
and  ten  in  Matabeleland — which  are  in  charge  of  Native  Commissioners 
or  Assistant  Native  Commissioners,  appointed  by  the  Administrator  with 
the  High  Commissioner's  approval.  The  duties  of  the  Native  Com- 
missioners are  prescribed  by  the  High  Commissioner's  Proclamation, 
No.  4  of  1902. 

Laws. — By  Proclamation  of  June  10,  1891  (Hertslet's  State  Papers, 
vol.  Ixxxiv.  p.  828),  the  laws  of  Cape  Colony,  passed  prior  to  that  date 
but  not  subsequent  to  it,  are  to  be  adopted  for,  and  administered  in. 
Southern  Ehodesia,  as  far  as  the  circumstances  of  the  territory  permit. 
As  to  those  laws,  see  article  Cape  of  Good  Hope,  sub-heading  Courts 
and  Laws.  In  addition,  the  legislation  affecting  Ehodesia  consist  of 
local  Ordinances  and  Orders  in  Council. 

By  Order  in  Council  of  October  3,  1895  (St.  E.  &  0.,  Eev.  1904, 
vol.  v.,  "Foreign  Jurisdiction,"  p.  113),  marriages  solemnised  in  Mata- 
beleland before  January  10,  1895,  were  legalised.  Orders  in  Council 
have  also  made  provision  for  the  removal  of  prisoners  from  Ehodesia  to 
other  British  possessions  {ibid.,  p.  112),  for  naturalisation  in  Southern 
Ehodesia  {ibid.,  p.  136),  and  for  the  Military  Police  Forces  in  Southern 
Ehodesia  {ibid.,  p.  140). 

The  flags  used  by  vessels  of  the  Company  are  regulated  by  Admiralty 
Warrant  of  November  11,  1902  (Hertslet's  State  Papers,  vol.  xcvi.  p. 
405). 


EHODESIA  9 

Courts  of  Law. — A  High  Court  of  Justice  was  established  in  Southern 
Rhodesia  by  the  Order  in  Council  of  October  20,  1898  (see  above),  by 
which  it  is  now  regulated.  The  High  Court  has  original  civil  and 
criminal  jurisdiction,  and  appeals  lie  to  it  from  the  District  Courts. 
The  High  Court  consists  of  a  Senior  and  a  Puisne  Judge.  Appeals  from 
the  High  Court  lie  to  the  Supreme  Court  of  Cape  Colony,  being  regulated 
by  Act  22  of  1898  (Hertslet's  State  Papers,  vol.  xc.  p.  1160),  and  there- 
from to  His  Majesty  in  Council  (St.  R. &  0.,  Rev.  1904,  vol.  v.,  "Foreign 
Jurisdiction,"  p.  129).  The  Judges  of  the  High  Court  are  appointed  by 
the  Secretary  of  State  on  the  Company's  nomination.  In  each  district 
there  is  a  Magistrates'  Court,  from  which  appeals  lie  to  the  High 
Court. 

Application  of  Imperial  Statutes. — By  Order  in  Council  of  August  8, 
1901  {ibid.,  "Fugitive  Criminal,"  vol.  v.  p.  328),  Southern  Rhodesia  was 
grouped  with  the  other  British  protectorates  and  colonies  in  South 
Africa  for  the  purpose  of  the  inter-colonial  backing  of  extradition 
warrants  under  the  Fugitive  Offenders  Act,  1881.  The  same  order 
brings  the  two  Northern  Rhodesias  and  Nyasaland  into  the  same  group, 
which  comprises  all  British  Central  and  South  Africa. 

The  Colonial  Probates  Act,  1892,  has  been  applied  to  Southern 
Rhodesia  by  Order  in  Council  of  July  28,  1906  (St.  R.  &  0.,  1906, 
p.  1). 

III.  North-Eastern  Rhodesia. 

Area. — North-Eastern  Rhodesia,  the  smallest  of  the  three  Rhodesian 
protectorates,  has  an  area  of  109,000  square  miles,  or  nearly  three  times 
that  of  the  Nyasaland  Protectorate,  which  it  adjoins. 

Administration. — The  protectorate  is  administered  under  the  North- 
Eastern  Rhodesia  Order  in  Council  of  1900  (St.  R.  &  O.,  Rev.  1904, 
vol.  v.,  "  Foreign  Jurisdiction,"  p.  56),  as  amended  by  the  North- 
Eastern  Rhodesia  Order  in  Council,  1907  (St.  R.  &  0.,  1907,  p.  168), 
under  which  the  Company  appoints  an  administrator,  subject  to  the 
approval  of  the  Secretary  of  State,  for  a  period  of  three  years,  which 
may  be  extended.  When  the  Company  thinks  it  expedient  there  is 
to  be  a  Legislative  Council  to  assist  the  Administrator,  which  is  to 
consist  of  the  Senior  Judge,  ex  officio,  and  not  less  than  three  other 
members  appointed  for  three  years  by  the  Company,  with  the  approval 
of  the  Secretary  of  State.  Legislation  is  by  Regulations  made  by  the 
Administrator,  with  the  concurrence  of  the  Legislative  Council  and  the 
approval  of  the  Governor  of  the  Nyasaland  Protectorate  {q.v.). 

The  protectorate  is  divided  into  seven  fiscal  and  magisterial  districts, 
which  are  in  turn  divided  into  fourteen  native  divisions. 

Courts  of  Law  and  Laws. — In  North-Eastern  Rhodesia  there  is  a 
High  Court,  which  was  established  by  the  North-Eastern  Rhodesia  Order 
in  Council  of  1900,  by  which  it  is  now  regulated.  It  has  original  civil 
and  criminal  jurisdiction,  and  appeals  lie  to  it  from  the  District  Courts. 
It  consists  of  one  judge,  and  appeals  lie  from  it  to  His  Majesty  in  Council 
{ihid.,  p.  63).  There  are  also  District  Courts  presided  over  by  magis- 
trates, from  which  appeals  lie  to  the  High  Court.  The  civil  and  criminal 
jurisdiction  of  the  High  Courts  and  the  Magistrates'  Courts  are  to  be 
exercised,  as  far  as  circumstances  permit,  in  conformity  with  the  law  for 
the  time  being  in  force  in  and  for  England,  except  so  far  as  such  law  may 
be  modified  by  any  Order  in  Council,  Regulation,  or  King's  Regulations 
(Art.  21  (2)  of  the  1900  Order).     In  civil  cases  be,tween  natives  regard 


10  EHODIAN  LAWS 

must  be  paid  to  native  law,  so  far  as  it  is  not  repugnant  to  natural 
justice,  or  morality,  or  to  any  Order  in  Council,  or  any  regulation 
thereunder  (art.  35). 

Application  of  Imperial  Acts. — As  stated  under  II.  above,  North- 
Eastern  Ehodesia  has  for  the  purposes  of  extradition  warrants  been 
grouped  with  our  other  dependencies  in  Central  and  South  Africa. 

IV.  North-Westeen  Ehodesia. 

Area. — The  Barotziland,  or  North-Western  Ehodesia  Protectorate, 
the  largest  of  the  three  Ehodesian  protectorates,  has  an  area  of  182,000 
square  miles,  considerably  greater  than  that  of  North-Eastern  Ehodesia 
(see  III.  above)  and  Nyas aland  {q.v.)  combined. 

Administration. — The  protectorate  is  administered  under  the  Barot- 
ziland North- Western  Ehodesia  Order  in  Council  of  1899,  as  amended 
by  the  Orders  in  Council  of  1901  and  1902  {iUd.,  p.  52).  Under  these 
Orders  in  Council  these  territories  are  administered  by  an  Administrator 
appointed  by  the  High  Commissioner  for  South  Africa,  and  the  High 
Commissioner  legislates  by  proclamation  for  the  protectorate. 

The  protectorate  is  divided  into  nine  administrative  districts. 

Laws. — The  law  of  England  applies  to  the  protectorate,  as  far  as 
local  circumstances  permit,  under  article  16  of  the  Order  in  Council  of 
1899.  As  is  the  case  in  ISI'orth-Eastern  Ehodesia,  in  actions  between 
natives,  native  law  and  custom  prevail,  save  so  far  as  the  same  is  incom- 
patible with  the  due  exercise  of  His  Majesty's  power  and  jurisdiction 
(sec.  6  of  Proclamation  No.  6  of  1905). 

Courts  of  Law. — The  High  Commissioner  was  empowered  by  the 
Barotziland  Order  in  Council  to  provide  for  the  administration  of  justice 
(ibid.,  p.  53),  and  by  Proclamation  No.  6  of  1905  an  Administrator's 
Court  was  established,  consisting  of  three  judges,  of  whom  the  Adminis- 
trator is  president,  and  Magistrates'  Courts  were  also  set  up.  By  sec.  5 
of  this  Proclamation  these  Courts  are  constituted  Courts  of  Eecord  and 
Courts  of  Law  and  Equity,  and  under  sees.  18  and  175  an  appeal  lies  to 
the  Administrator's  Court  from  the  Magistrates'  Courts.  Under  the 
Instructions  of  July  31,  1891,  under  the  Africa  Order  in  Council  of 
1889,  appeals  lie  from  the  Protectorate  Courts  to  the  Supreme  Court  of 
Cape  Colony,  and  therefrom  to  His  Majesty  in  Council. 

Application  of  Imperial  Acts. — As  stated  under  II.  above.  North- 
western Ehodesia  has  been  for  the  purposes  of  extradition  warrants 
grouped  with  our  other  dependencies  in  Central  and  South  Africa. 
(See  Colonial  Office  List ;  Statesman's  Year-Booh.) 

Rhodian  Laws. — A  code  of  sea  laws  deriving  their  name  from 
the  island  of  Ehodes,  where  they  originated  in  very  early  times.  They 
appear  to  have  been  declared  by  the  Eoman  Emperors  to  constitute  the 
sea  law  of  the  world,  for  we  read  in  the  Digest  the  following  dictum  by 
the  Emperor  Antonine : — "  I  am  master  of  the  world ;  but  the  law  is 
mistress  of  the  sea.  The  Ehodian  sea  laws  are  always  to  be  observed 
when  not  conflicting  with  our  own,  for  thus  has  already  decided  the 
Emperor  Augustus  "  (xiv.  tit.  3). 

The  full  text  of  these  ancient  laws  is  not  known  to  us,  the  earliest 
group  of  laws  extant  bearing  the  name  being  published  by  Simon 
Suchard  in  1591  at  Basle,  and  inserted  in  1596  in  a  collection  of  Greco- 
Eoman  books  of  law.     It  was  claimed  that  they  were  identical  with  the 


RIDING  11 

ancient  Ehodian  laws,  but  the  evidence  upon  which  the  claim  rests  is 
not  complete.  The  only  fragment  certainly  authentic  still  remaining  to 
us  is  the  14th  Book  of  the  Digest  entitled  De  lege  rhodia  de  jadu,  by 
which  if  a  jettison  be  made  of  goods  for  the  sake  of  lightening  the  ship, 
that  which  has  been  sacrificed  for  all  is  to  be  made  good  by  general 
contribution  (Abbott,  5th  ed.,  342 ;  14th  ed,,  751  et  seq. ;  and  see 
Avekage). 

Rider. — An  addition  to  a  manuscript  inserted  after  its  com- 
pletion, or  an  addition  to  a  motion  before  a  meeting,  or  some  quali- 
fication or  suggestion  made  by  a  jury  in  relation  to  the  verdict  it 
returns.  The  term  was  formerly  more  particularly  applied  to  a  new 
clause  added  to  a  bill  in  Parliament  on  its  third  reading — the  new 
clause  being  added  by  tacking  a  separate  piece  of  parchment  on  to  the 
bm  (1  Black.  Com.,  182). 

Riding'. — ^Yorkshire  and  Lincolnshire  from  a  date  prior  to  the 
Norman  conquest,  and  probably  since  its  constitution  as  a  county  at  large 
and  separation  from  Northumbria,  have  always  been  divided  into  three 
parts,  known  as  Ridings  (trithings),  a  corruption  of  "  trithing  "  a  third 
part  (Stubbs,  Const.  Hist.,  vol.  i.  p.  127).  The  origin  is  said  by  some 
authorities  to  date  from  the  Danish  conquest.  The  Ridings  of  York- 
shire are  North,  East,  and  West.  The  Ridings  of  Lincolnshire  have 
for  many  centuries  been  termed  "  Parts,"  i.e.  the  Parts  of  Lincolnshire 
known  as  Holland,  Lindsey  and  Kesteven  (see  Archb.  Quarter  Sessions, 
1908  ed.,  p.  13). 

The  county  of  Yorkshire  has  one  sheriff,  and,  subject  to  circuit 
arrangements,  is  one  only  for  assize  purposes.  But  each  Riding  has 
always  had  a  separate  commission  of  the  peace  and  Court  of  Quarter 
Sessions,  and  a  separate  lord-lieutenant  and  custos  rotulorum ;  and  each  is, 
since  1889,  a  separate  administrative  county  (51  &  52  Vict.  c.  41,  s.  46  (1)), 
and  since  1897,  a  separate  county  for  appointing  coroners  (60  &  61 
Vict.  c.  39) ;  and  the  functions  of  gaol  sessions  in  the  county  have  to 
this  extent  ceased  (51  &  52  Vict.  c.  41,  s.  46  (2),  (3)).  Separate  land 
registers  exist  in  each  Riding  (47  &  48  Vict.  c.  54,  ss.  31-34 ;  51  &  52 
Vict.  c.  41,  s.  46  (4)). 

Certain  liberties  and  franchises  within  the  county  have  been  merged 
in,  or  annexed  to,  one  or  other  Riding  by  modern  legislation.  Several 
townships  were  taken  away  from  the  Liberty  of  Ripon  and  annexed  to 
the  North  Riding  in  1837  (7  Will.  iv.  &  1  Vict.  c.  53,  s.  8).  The  records 
of  Ripon,  Cawood,  Wistow,  and  Otley  were  transferred  to  the  custos 
rotulorum  of  the  West  Riding  in  1836  (6  &  7  Will.  iv.  c.  87,  s.  6).  So 
much  of  the  wapentake  of  the  Ainsty  of  York  as  is  not  within  the 
municipal  boundaries  of  the  city  of  York  is  now  included  in  the 
West  Riding  (51  &  52  Vict.  c.  41,  s.  50  (1)  {d)).  Ripon,  Cawood,  Wistow, 
and  Otley  are  now  merged  in  the  West  Riding  under  the  general  terms 
of  the  Local  Government  Act,  1888,  51  &  52  Vict.  q.  41,  s.  48 ;  and 
Pontefract  was  merged  in  1845  (8  &  9  Vict.  72,  s.  4). 

The  Parts  of  Lincolnshire,  like  the  Ridings  of  Yorkshire,  have 
separate  Commissions  of  the  Peace  and  Quarter  Sessions.  There  is, 
like  Yorkshire,  only  one  sheriff  for  the  whole  county,  but  unlike 
Yorkshire  only  one  lord-lieutenant. 

Originally  the  State  of  Pennsylvania  was  divided  into  Ridings. 
Ireland  has  the  county  of  Tipperary   divided  into  North  and  South 


12  EIDING  AEMED 

Eidings,  each  Eiding  being  a  separate  administrative  county,  though 
there  is  only  one  Lord  Lieutenant  for  both. 

See  PuUing's  Handbooh  for  County  Authorities,  1889  ed.,  and  Stubbs, 
supra. 

Riding*  Armed. — The  bearing  of  arms  in  time  of  peace  is 
prohibited  by  two  ancient  but  unrepealed  statutes.  7  Edw.  ii.  (1313) 
forbids  the  coming  armed  to  Parliament,  and  the  Statute  of  Northampton, 
1328,  2  Edw.  III.  c.  3,  forbids  any  man  great  or  small  to  come  with  force 
and  arms  before  the  King's  justices  or  ministers  doing  their  office,  or 
to  go  or  ride  armed  by  night  or  day  in  fairs  or  markets  or  elsewhere, 
upon  pain  of  forfeiting  his  armour  and  incurring  imprisonment  at  the 
King's  pleasure.  The  prohibition  does  not  extend  to  the  King's 
servants  in  his  presence,  or  the  King's  ministers  in  executing  the 
King's  precepts  or  their  office,  nor  to  a  cry  made  for  arms  to  keep 
the  peace  (see  1  Eev.  Stat.,  2nd  ed.,  63,  88). 

Right  Acquired  or  Accrued.— The  right  of  a  solicitor 

who  has  neglected  to  renew  his  certificate  to  apply  for  a  fresh  one  is 
not  a  "right  acquired  or  accrued"  within  sec.  23,  proviso  B.,  of  the 
Solicitors  Act,  1887  {In  re  Chaffers,  Ux  parte  Incorporated  Law  Society, 
1885,  15  Q.  B.  D.  467). 

Right  of  Reply. — See  Eeply,  Eight  of. 

Right,  Petition  of.— See  Petition  of  Eight. 

Right,  Petition  of  (Const.  Law).— See  Petition  of 
Eight  (1628). 

Right  to  Begin.— See  Burden  OF  Proof. 

Right  to  Convey  (Covenant  for).— This  is  one  of 

the  covenants  for  title  formerly  inserted  in  conveyances,  and  now  implied 
in  them  by  the  grantor  being  expressed  to  convey  "  as  beneficial  owner," 
or  "  as  mortgagor,"  as  the  case  may  be.  The  covenant  implied  by  the 
Conveyancing  Act,  1881,  s.  7,  is  that  the  person  conveying  "has,  with 
the  concurrence  of  every  other  person,  if  any,  conveying  by  his  direction, 
full  power  to  convey  the  subject-matter  expressed  to  be  conveyed,  sub- 
ject as,  if  so  expressed,  and  in  the  manner  in  which,  it  is  expressed  to 
be  conveyed."  Like  other  covenants  for  title,  it  is  unqualified  in  the 
case  of  mortgages,  but  in  the  case  of  conveyances  on  sales  it  is  only 
against  anything  done  by  the  person  conveying,  or  anyone  through 
whom  he  derives  title,  otherwise  than  by  purchase  for  value.  See  Piatt 
on  Covenants;  Title,  Covenants  for. 

Rights,  pill  of. — See  Bill  of  Eights. 

Ring-dropping  is  a  mode  of  cheating,  punishable  either  as 
larceny  by  a  trick,  or  as  obtaining  money  by  false  pretences.  It  consists 
in  pretending  to  have  found  a  ring  or  other  valuable,  and  to  go  shares 
in  its  value  with  the  victim,  on  his  giving  some  security  in  return  for 
possession  of  the  valuable.  Where  the  accused  has  from  the  outset 
schemed  to  get  the  victim's  property,  and  the  victim  meant  to  part  with 


RIOT  13 

possession  only,  the  offence  is  Lakceny.  Where  the  property  is  parted 
with,  the  offence  is  False  Peetences  (see  K  v.  Moore,  1784,  1  Leach, 
314;  B.  V.  Bussett,  [1892]  2  Q.  B.  312;  B.  v.  Buckmaster,  1888,  20 
Q.  B.  D.  182 ;  B.  v.  Solomons,  1890,  17  Cox  C.  C.  93). 

Ring'ing'  the  Changes  consists  in — (1)  endeavouring  by  a 
trick  to  substitute  a  false  coin  for  a  genuine  one  tendered  in  payment 
(B.  V.  Franks,  1794,  Leach,  644) ;  (2)  asking  for  change  of  a  coin,  and 
by  appearing  to  alter  one's  mind,  or  by  confusing  the  person  giving  the 
change,  to  get  in  change  a  larger  amount  than  the  coin  or  note  actually 
given  to  be  changed,  or  to  get  back  the  coin  given  to  be  changed  and 
also  to  get  the  change.  It  is  a  form  of  larceny  by  a  trick.  See 
Lakceny. 

Rink. — See  Public  Entertainment. 

Riot. — "A  riot"  is  a  disturbance  of  the  peace  by  three  or  more 
persons  assembling  together  of  their  own  authority  with  an  intent  mutu- 
ally to  assist  one  another  against  any  who  oppose  them  in  the  execution 
of  some  enterprise  of  a  private  nature,  and  afterwards  actually  execute 
the  same  in  a  violent  and  turbulent  manner,  to  the  terror  of  the  people 
(B.  V.  Cunningham  Graham,  1888,  16  Cox  C.  C.  420),  It  is  immaterial 
whether  the  act  done  is  unlawful  or  not,  but  there  must  be  an  act  (B.  v. 
Vincent,  1839,  9  Car.  &  P.  91 ;  B.  v.  Neale,  1839,  9  Car.  &  P.  431).  It 
differs — (1)  from  an  Affray,  which  is  merely  a  terrifying  quarrel  in  a 
public  place;  (2)  from  an  unlawful  assembly,  in  that  the  latter  may 
exist  without  any  act  (see  Assembly,  Unlawful)  ;  (3)  from  a  Eout,  in 
that  the  latter  involves  a  mere  commencement  or  setting  out  to  do  some 
unlawful  act;  and  (4)  from  insurrection  or  levying  war,  which  is 
Treason.  "  When  the  rising  or  tumult  is  merely  to  accomplish  some 
private  purpose,  e.g.  the  liberation  of  a  particular  prisoner,  interesting 
only  to  those  engaged  in  it,  and  not  resisting  or  calling  in  question  the 
King's  authority  or  prerogative,  the  tumult,  however  numerous  or  out- 
rageous the  mob  may  be,  is  only  a  riot,  and  is  not  treason  "  (B.  v.  Hardie, 
1820,  1  St.  Tri.  K  S.  623,  765;  B.  v.  Gordon,  1781,  21  St.  Tri.  644; 
B.  V.  Frost,  1839,  4  St.  Tri.  N.  S.  98 ;  and  see  Treason). 

To  constitute  a  riot  five  elements  are  necessary — {a)  A  number  of 
persons  not  less  than  three;  (b)  a  common  purpose;  (c)  execution  or 
inception  of  the  execution  of  the  common  purpose;  {d)  an  intent  on 
the  part  of  the  number  of  persons  to  help  one  another  by  force  if  neces- 
sary against  any  person  who  may  oppose  them  in  the  execution  of  the 
common  purpose ;  {e)  force  or  violence  not  merely  used  in  and  about  the 
execution  of  the  common  purpose  but  displayed  in  such  a  manner  as  to 
alarm  at  least  one  person  of  reasonable  firmness  and  courage  {Field  v. 
Beceiver  of  Metropolitan  Police,  [1907]  2  K.  B.  853). 

The  common  purpose,  as  already  stated,  must  be  "of  a  private 
nature  "  (vide  ante). 

Eiot  is  an  indictable  misdemeanor  at  common  law,  punishable  by 
fine  and  imprisonment,  with  or  without  hard  labour  (3  Geo.  iv.  c.  114), 
or  by  requiring  the  offenders  to  give  security  for  good  behaviour,  and 
to  keep  the  peace. 

Under  the  Eiot  Act,  1716,  1  Geo.  i.  st.  2,  c.  6,  it  is  made  felony  for 
twelve  or  more  persons  who  are  unlawfully,  riotously,  and  tumultuously 
assembled  together  to  the  disturbance  of  the  public  peace,  so  to  continue 


14  RIOT 

together  for  an  hour  after  being  commanded  to  disperse  by  the  sheriff 
or  under-sheriff,  or  a  justice,  or  the  mayor  of  the  borough,  by  reading 
correctly  the  following  proclamation : — 

Our  sovereign  lord  the  King  chargeth  and  commandeth  all  persons  being 
assembled  immediately  to  disperse  themselves,  and  peaceably  to  depart  to 
their  habitations  or  to  their  lawful  business,  upon  the  pains  contained  in  the 
Act  made  in  the  first  year  of  King  George  for  preventing  tumults  and  riotous 
assemblies.     God  Save  the  King. 

(1  Geo.  I.  St.  2,  c.  5,  ss.  1,2;  R.  v.  Child,  1830,  4  Car.  &  P.  442). 

The  punishment  is  now  penal  servitude  for  life,  or  not  less  than 
three  years,  or  imprisonment  with  or  without  hard  labour  for  not  over 
two  years  (54  &  55  Vict.  c.  69,  s.  1). 

Prosecutions  under  the  Riot  Act,  1716,  must  be  within  twelve  {qu, 
lunar)  months  of  the  offence  (1  Geo.  i.  st.  2,  c.  5,  s.  8). 

It  is  also  a  felony — (1)  forcibly  to  prevent  the  reading  of  the  Riot 
Proclamation ;  (2)  to  assemble  after  such  prevention  from  reading  the 
proclamation  (1  Geo.  i.  st.  2,  c.  5,  s.  5) ;  (3)  riotously,  unlawfully,  and 
by  force  to  demolish  or  begin  to  demolish  a  church  or  other  building  or 
machinery  (24  &  25  Vict.  c.  97,  s.  11 ;  B.  v.  Howell,  1839,  3  St.  TrL 
N.  S.  1087 ;  Field  v.  Receiver  of  Metropolitan  Police,  ubi  sup.). 

And  it  is  a  misdemeanor  riotously  to  injure  such  buildings  or 
machinery.  Persons  tried  for  the  felony  can  be  convicted  of  the  mis- 
demeanor (24  &  25  Vict.  c.  97,  s.  12). 

There  are  also  enactments  prohibiting  more  than  ten  persons  coming 
to  present  petitions  to  King  or  Parliament  (13  Cha.  ii.  st.  1,  c.  5),  and 
assemblies  of  more  than  fifty  near  the  Houses  of  Parliament  during  the 
session  (57  Geo.  in.  c.  19,  s.  23). 

Certain  provisions  relating  to  riotous  conduct  by  seamen  and  with 
reference  to  crews  (11  Geo.  ii.  c.  22;  33  Geo.  ill.  c.  67;  36  Geo.  in.  c.  9) 
are  now  superseded  by  sees.  39,  40  of  the  Offences  against  the  Person 
Act,  1861.    See  Assault. 

The  offence  of  riot  is  distinct  from  any  other  offences,  such  as 
assaults,  theft,  malicious  damage,  etc.,  committed  in  the  course  of  the 
riot. 

The  form  of  the  Riot  Act  of  1716  has  caused  many  persons  to  fall 
into  the  error  of  supposing  that  because  the  law  allows  one  hour  for 
the  dispersion  of  a  mob  to  whom  the  proclamation  has  been  read  by 
a  magistrate,  during  that  period  the  civil  power  and  the  King's  subjects 
are  bound  to  remain  quiet  and  passive. 

The  language  of  the  Act  does  not  warrant  any  such  construction, 
nor  could  such  have  been  the  intention  of  the  legislature.  The  civil 
authorities  are  left  in  possession  of  all  the  powers  which  the  law  had 
previously  invested  them ;  all  peace  officers  may  and  ought  to  do  all 
that  in  them  lies  towards  the  suppression  of  such  meetings,  and  may 
command  others  to  assist  them;  and  by  the  common  law,  also,  any 
private  person  may  lawfully  endeavour  to  oppose  such  disturbances  by 
staying  the  persons  engaged  from  executing  their  purpose,  and  by 
stopping  others  who  are  coming  to  join  them ;  and  all  persons,  even  a 
private  individual,  may  do  anything,  using  force  even  to  the  last 
extremity,  to  prevent  the  commission  of  a  felony. 

This  statement  of  the  law  in  a  charge  of  Park,  J.,  in  1831  (2  St.  Tri. 
K  S.  1029),  is  supported  by  R.  v.  Gordon,  1781,  21  St.  Tri.  485,  and  by 
a  series  of  subsequent  judicial  rulings,  especially  in  R,  v.  Pinney,  1832 


EIOT  15 

3  St.  Tri.  K  S.  11.  But  the  notion  still  persists,  and  led  the  Commis- 
sioners on  the  Featherstone  Riots  to  recommend  consolidation  of  the  law 
in  a  clear  form. 

Everyone  is  bound  to  aid  in  suppressing  riotous  assemblages.  This, 
so  far  as  the  right  of  the  citizen  is  concerned,  is  said  to  arise  from  the 
common  law  (case  of  Armes,  1597,  Poph.  121 ;  79  E.  E.  1227);  but  the 
obligation  depends  on  statutes  of  1411  (13  Hen.  iv.  c.  7)  and  1414 
(2  Hen.  v.  st.  1,  c.  8).  The  degree  of  force  which  may  be  lawfully  used 
in  suppressing  riots  depends  on  the  nature  of  each  riot ;  for  the  force 
used  must  always  be  moderated  and  proportioned  to  the  circumstances 
of  the  case,  and  to  the  end  to  be  attained  (but  see  1  Geo.  i.  st.  2, 
c.  5,  8.  4). 

The  taking  of  life  can  only  be  justified — (1)  by  the  necessity  of  pro- 
tecting persons  and  property  against  various  forms  of  violent  crime ;  or 
(2)  by  the  necessity  of  dispersing  a  riotous  crowd  which  is  dangerous 
unless  dispersed  ;  or  (3)  in  the  case  of  persons  whose  conduct  has  become 
felonious  through  disobedience  to  the  provisions  of  the  Riot  Act,  and 
who  resist  the  attempt  to  disperse  or  apprehend  them  (Featherstone 
Inquiry  Report,  Pari.  Pap.  1893-94,  C.  7234). 

The  jurisdiction  and  duties  of  justices  over  rioters  rest  upon  the 
commissions  of  the  peace  and  the  statutes  creating  them  (34  Edw.  in. 
c,  1  ;.15  Rich.  ii.  c.  2),  and  the  Riot  Act,  1716.  The  duties,  etc.,  of  the 
sheriffs,  apart  from  questions  of  felony,  rest  on  other  early  Acts  (17 
Rich.  II.  c.  8 ;  13  Hen.  iv.  c.  7 ;  and  2  Hen.  v.  st.  1,  c.  8).  For  failure 
in  discharge  of  these  duties  the  justices  and  sheriffs  are  indictable 
(13  Hen.  iv.  c.  7 ;  2  Hen.  v.  st.  1,  c.  8 ;  B.  v.  Finney,  1832,  3  St.  Tri. 
N.  S.  11). 

With  respect  to  persons  under  military  law,  the  position  appears  to 
be  thus  correctly  stated  in  the  report  on  the  Featherstone  Riot  (Pari. 
Pap.  1893-94,  C.  7234)  :— 

"A  soldier,  for  the  purpose  of  establishing  civil  order,  is  only  a 
citizen  armed  in  a  particular  manner.  He  cannot,  because  he  is 
a  soldier,  excuse  himself,  if,  without  necessity,  he  takes  human  life. 
A  soldier  can  only  act  by  using  his  arms.  The  weapons  he  carries 
are  deadly.  They  cannot  be  employed  at  all  without  danger  to  life 
and  limb,  and  in  these  days  of  improved  rifles  and  perfected  ammuni- 
tion, without  some  risk  of  injuring  distant  and  possibly  innocent 
bystanders.  To  call  for  assistance  against  rioters  from  those  who 
can  only  interfere  on  such  grave  conditions,  ought,  of  course,  to  be 
the  last  expedient  of  the  civil  authorities ;  but  when  the  call  for  help 
is  made,  and  a  necessity  for  assistance  from  the  military  has  arisen, 
to  refuse  such  assistance  is  in  law  a  misdemeanor.  The  whole  action 
of  the  military  when  once  called  in  ought  to  be  based  on  the  prin- 
ciple of  doing,  and  doing  without  fear,  that  which  is  absolutely 
necessary  to  prevent  serious  crime,  and  of  exercising  all  care  and 
skill  with  regard  to  what  is  done;  and  the  presence  of  a  magistrate, 
while  expedient,  is  not  in  the  least  necessary  to  entitle  the  military 
to  act,  even  by  fire,  to  prevent  felonious  outrage  or  dangerous  riot." 

The  sheriffs  and  justices  are  entitled  to  call  out  the  posse  comitatus  to 
suppress  riots,  or  prevent  apprehended  riot,  and  special  constables  may 
be  sworn  in  if  required  (1  &  2  Will.  iv.  c.  41,  s.  6).     Provision  is  also 


16  EIPAKIAN  OWNEES 

made  for  obtaining  the  assistance  of  the  regular  army  on  requisition ;  or 
for  calling  out  the  local  militia  (52  Geo.  ill.  c.  38,  ss.  42,  92,  94),  the 
reserve  forces  (44  &  45  Vict.  c.  58,  s.  176  (5)),  or  the  yeomanry  (44  Geo. 
III.  c.  54,  s.  23),  and  for  adjourning  poll  at  elections,  or  closing  theatres 
(6  &  7  Vict.  c.  68,  s.  9)  and  public-houses  (35  &  35  Vict.  c.  93,  ss.  23, 28), 
if  a  riot  is  feared  or  is  proceeding. 

Under  the  Eiot  Damages  Act,  1886,  59  &  60  Vict.  c.  38,  which  super- 
seded the  old  proceedings  against  the  hundred,  compensation  may  be 
obtained  out  of  the  local  police  rate — (1)  for  injuries  caused  by  rioters, 
and  not  covered  by  insurance,  whether  the  riot  takes  place  in  a  public 
place  or  on  public  grounds  {Gunter  v.  Metropolitan  Police  Receiver,  1887, 
53  J.  P.  249.  To  recover  under  this  Act  it  must  be  proved  that  a  riot, 
in  the  full  meaning  of  the  term,  took  place  {Field  v.  Receiver  of  Metro- 
politan Police,  [1907]  2  K.  B.  853).  It  is  not  necessary  to  prove  felonious 
demolition  as  under  the  old  law,  see  Drake  v.  Footit,  1881,  2  Q.  B.  D.  201) ; 
(2)  for  plundering,  damaging,  or  destroying  the  hull  or  cargo  of  a  ship 
in  distress,  wrecked,  or  stranded  (57  &  58  Vict.  c.  60,  s.  515). 

The  claims  are  preferred  to  the  police  authority  for  the  district  in 
accordance  with  Home  Office  Eegulations  (printed  in  the  Metropolitan 
Police  Guide,  4th  ed.  by  Eoberts,  1906,  p.  139);  and  if  not  satisfactorily 
settled,  may  be  recovered  by  action  (49  &  50  Vict.  c.  38). 

l^Authoi^ities. — Archb.  Cr.  PL,  23rd  ed. ;  Eussell  on  Crimes,  6th  ed. ; 
Steph.  Dig.  Cr.,  6th  ed. ;  Featherstone  Inquiry  Eeport,  1893-94,  C.  7234, 
Lord  Bowen ;  Manual  of  Military  Law  (cxiii.,  by  Lord  Thring ;  Haycraf  t, 
Executive  Powers  of  Police.'] 

Riparian  Owners. — The  rights  of  riparian  owners  in  rivers 
and  streams  are  treated  under  the  headings  Eiveks,  International; 
Waterway. 

Ritual  primarily  means  a  prescribed  mode  or  order  of  conducting 
a  religious  service. 

The  subjects  in  reference  to  which  the  term  is  used  in  English 
ecclesiastical  law  may  be  grouped  as — 

L  The  Decorations — (a)  permanent,  {h)  temporary,  of  the  Church. 

2.  The  Ornaments  of  the  Church.  Here  the  word  ornament  has  a  tech- 
nical sense.    See  Ornaments  Eubric. 

3.  The  Ornaments  of  the  Minister.  This  subject  is  treated  separately 
under  Vestments. 

4.  Ceremonies.  Sir  E.  Phillimore  defines  a  ceremony  as  "a  gesture  or 
act  preceding,  accompanying,  or  following  the  utterance  of  words." 

5.  Eites.  The  same  authority  defines  a  rite  as  "a  service  expressed  in 
words"  {Martin  v.  Machonochie,  1867,  L.  E.  2  Ad.  &  Ec.  p.  116,  at  p.  135; 
In  re  Robinson,  [1897]  1  Ch.,  at  p.  96 ;  Read  v.  Bishop  of  Lincoln,  [1891]  P.,  at 
p.  78). 

It  is  settled  that  the  decisions  of  the  Privy  Council' on  questions  of 
ritual,  depending  as  they  do  upon  the  accuracy  of  conclusions  as  to 
historical  facts,  do  not  possess  absolute  finality,  but  are  open  to  recon- 
sideration on  future  occasions  when  further  historical  evidence  has  come 
to  light  {Read  v.  Bishop  of  Lincoln,  [1892]  A.  C,  at  p.  655).  Conse- 
quently it  must  be  considered  doubtful  whether,  if  some  of  the  points 
involved  in  the  ritual  decisions,  and  particularly  those  as  to  Vestments, 
wafer  bread,  and  Incense,  hereinafter  mentioned  should  again  come  up 
for  consideration,  the  same  result  would  be  arrived  at. 


RITUAL  17 

1.  Permanent  Decorations. — These  include  such  things  as  sculptures, 
or  paintings  employed  in  decorating  the  pulpit,  font  or  communion  table, 
stained-glass  windows,  memorials  of  the  dead. 

To  legalise  any  addition  to  or  alteration  in  the  permanent  fabric  of 
a  church,  but  not  of  a  cathedral  {Boyd  v.  Phillpotts,  1874,  L.  R.  4  Ad. 
&  Ec,  at  p.  351),  a  faculty  is  necessary,  and  a  clergyman  carrying 
out  alterations  on  his  own  responsibility,  or  deviating  from  the  plans 
sanctioned  by  a  faculty,  may  involve  himself  in  a  criminal  suit,  and  be 
made  personally  liable  for  the  cost  of  the  restoration  of  the  church  to 
its  original  or  proper  state  {Lee  v.  Heme,  1892,  Tristram  Consistory,  217). 
However,  if  objects  have  been  erected  without  a  faculty,  it  is  not  com- 
petent for  anyone  to  remove  them  on  his  own  responsibility.  A  faculty 
for  their  removal  must  be  obtained  ( Vincent  v.  Eyton,  [1897]  P.  1 ; 
Durst  V.  Masters,  1876,  1  P.  D.  123,  373).  A  confirmatory  faculty 
authorising  the  retention  of  objects  erected  without  a  faculty  will  some- 
times be  granted  {Combe  v.  Edwards,  1877,  2  P.  D.  354) ;  [but  it  was  said 
in  Markham  v.  Shirehrooh  Overseers,  [1906]  P.  239,  that  an  application 
for  a  confirmatory  faculty  for  such  a  purpose  cannot  be  regarded  in  any 
more  favourable  light  than  an  application  for  a  faculty  for  the  first 
introduction  into  the  church  of  the  same  objects ;  and  further,  that  a 
confirmatory  faculty  will  be  refused  unless  there  is  sufficient  evidence 
before  the  ordinary  of  a  general  desire  on  the  part  of  the  churchgoing 
parishioners  for  the  retention  of  the  ornaments  in  question]. 

The  only  restriction  upon  the  employment  of  painting  or  sculpture 
for  the  decoration  of  the  fabric  appears  to  be  that  the  objects  represented 
must  not  necessarily  inculcate  an  unlawful  doctrine.  But,  inasmuch 
as  the  granting  of  a  faculty  is  a  matter  of  discretion  and  not  of  right, 
the  Court  may  refuse  it  if  there  is  a  substantial  danger  of  erroneous  or 
superstitious  views  being  fostered  by  the  objects  represented.  Thus 
the  introduction  of  the  Cross  architecturally,  as  distinguished  from  its 
ceremonial  use,  is  lawful  {Westerton  v.  Liddell,  1857,  Moore's  Special 
Rep.,  at  pp.  161,  175;  Bradfwd  v.  Fry,  1878,  4  P.  D.  93),  with  the 
exception  of  crosses  on  the  communion  table  (Communion,  Holy). 

Similarly,  images  of  saints,  or  sculptured  representations,  whether 
of  personages  or  events,  are  not  per  se  unlawful,  nor  is  a  crucifix 
unlawful  if  it  is  employed  solely  as  an  architectural  decoration  {Great 
Bardfield,  [1897]  P.  185  ;  Barsham,  [1896]  P.  256).  [See,  however,  iTenst^ 
V.  Rector  of  St.  Ethelhurga,  [1900]  P.  80.]  However,  unless  the  ordinary  is 
satisfied  that  there  is  no  danger  of  superstitious  reverence  being  paid  to 
the  figures  represented  (Art.  25),  a  faculty  may  be  refused  {St.  Matthias, 
Richmond,  [1897]  P.  70  ;  Timberhill,  [1895]  P.  71). 

The  sanction  is  perhaps  more  easily  obtained  if  what  is  proposed  to 
be  done  is  by  way  of  restoration.  On  the  other  hand,  it  is  more  difficult 
to  obtain  sanction  for  decorations  on  a  chancel  screen  or  reredos  than  it 
would  be  for  the  same  decorations  elsewhere  in  the  church.  But  see 
Images  in  Churches. 

The  principal  cases  on  permanent  decorations  are — 

Altar  or  Communion  Table. — See  Communion,  Holy. 

Baldacchino  held  an  unlawful  ornament,  and  consequently  illegal  in  fFhite 
V.  Bowron,  1873,  L.  R.  4  Ad.  &  Ec.  207  ;  but  it  seems  doubtful  whether  it  is 
an  "  ornament "  at  all. 

Chancel  Gates. — Sanctioned  in  St.  James,  Norland,  [1894]  P.  526,  and  many 
other  cases;  refused  in  St.  Andrew's,  Romford,  [1894]  P.  220;  St.  Matthias^ 
Richmond,  [1897]  P.  70,  where  most  of  the  cases  are  collected. 

VOL.  XIIL  2 


18  EITUAL 

Chancel  Screena. — Lawful  {St.  Augustine's,  Haggerston,  1877,  4  P.  D.  Ill) ; 
[see  also  In  re  St.  Anselm's,  Pinner,  [1901]  P.  202;  Ficar  of  Paignton  v. 
Inhabitants,  [1905]  P.  111]. 

Cross  aim  Crucifix  have  been  already  considered  ;  and  see  Ornaments 

BUBRIC. 

Images  held  not  unlawful  on  reredos  in  R.  v.  Bishop  of  London,  [1891] 
A.  C.  666.  Sanctioned  on  chancel  screen  in  Great  Bardfield,  [1897]  P.  185; 
Barsham,  [1896]  P.  256.  [The  erection  of  a  figure  of  our  Saviour  repre- 
sented as  standing  and  in  the  act  of  blessing,  the  figure  to  be  sculptured  in 
stone  in  high  relief,  under  life  size,  about  five  feet  high,  and  surrounded  by 
a  frame  containing  representations  of  angels,  was  sanctioned  in  In  re  Christ 
Church,  Ealing,  [1906]  P.  289.] 

Military  Colours. — See  Vincent  v.  Eyton,  [1897]  P.  1 ;  [and  In  re  St.  Mar- 
garet's, Westminster,  [1905]  P.  286]. 

Reredos  in  itself  is  clearly  lawful.  Questions  as  to  the  legality  of  particular 
designs  have  arisen  in  Boyd  v.  Phillpotts,  1875,  L.  R  6  P.  C.  449  ;  Hughes  v. 
Edwards,  1877,  2  P.  D.  361 ;  R.  v.  Bishop  of  London,  [1891]  A.  C.  666 ;  St. 
Laurence,  Pittington,  1880,  5  P.  D.  131 ;  St.  John,  Pendlehury,  [1895]  P.  178. 

Second  Holy  Table  or  Side  Altar. — Sanctioned  in  *S^^.  Peter's,  Eaton  Square, 
[1894]  P.  350  ;  Holy  Trinity,  Stroud  Green,  [1887]  12  P.  D.  199;  [In  re  St. 
James  the  Great,  Buxton,  [1907]  P.  368].  Faculties  for  this  purpose  have  been 
refused,  on  the  ground  that  no  adequate  necessity  for  allowing  a  second  holy 
table  was  shown ;  but  the  cases  do  not  appear  to  have  been  reported  (see  note 
to  Hudsm  V.  Tooth,  1877,  2  P.  D.  126). 

Stained-Glass  Windows.  —  See.  Woodward  v.  Folkestone,  1880,  Tristram 
Consistory,  177  ;  Egerton  v.  All  of  Odd  Rode,  [1894]  P.  15. 

Stations  of  the  Cross. — Bas-relief  representing  these,  ordered  to  be  removed 
in  Clifton  v.  Ridsdale,  1876,  1  P.  D.  316 ;  [Inre  St.  Mark's,  Marylebone,  [1898] 
P.  114;  and  in  Markham  v.  Shirebrook  Overseers,  [1906]  P.  239]. 

Ten  Commandments. — The  directions  in  the  82nd  Canon  must  be  complied 
with  as  closely  as  circumstances  permit  (Liddell  v.  Beat,  1857,  14  Moore,  at 
p.  15). 

Tombs  and  Ornamental  Inscriptions. — The  legality  of  an  inscription  request- 
ing prayers  for  the  dead  was  considered  in  Egerton  v.  All  of  Odd  Rode,  [1894] 
P.  15. 

2.  Temporary  Decorations. — The  legality  of  these,  whether  at  an 
ordinary  service,  or  such  as  are  usually  employed  at  Christmas,  Easter, 
harvest  festivals,  and  the  like,  appears  to  rest  upon  long-continued 
usage. 

The  practice  of  employing  flowers  in  decoration  was  referred  to  by 
Sir  Eobert  Phillimore  in  Elphinstone  v.  Purchas,  1870,  L.  E.  3  Ad.  &  Ec. 
at  p.  106,  as  "innocent  and  not  unseemly,"  and  in  that  case  it  was 
decided  that  it  is  not  illegal  to  place  flowers  upon  the  communion 
table  (see  also  B.  v.  Bishop  of  Lincoln,  [1891]  P.,  at  p.  88). 

There  does  not  appear  to  be  any  legal  restriction  on  the  objects 
employed  by  way  of  hond-fide  temporary  decoration.  In  Elphinstone 
V.  Purchas,  supra,  at  p.  107,  Sir  E.  Phillimore  expressed  the  view 
that  a  stuffed  dove  was  a  legal  temporary  decoration,  though  a  cere- 
monial use  of  it  was  unlawful. 

3.  Ornaments. — There  is  a  very  important  distinction  between  the 
mere  presence  of  an  object  as  an  ornament  in  a  church  "inert  and 
unused,"  and  its  use  as  part  of  a  ceremony  (Martin  v.  Machonochie, 
1868,  L.  E.  2  P.  C.  365).  The  authorities  relating  to  the  history  and 
construction  of  the  Ornaments  Eubric  will  be  found  under  that  head. 
Apart  from  that  rubric,  the  use  of  ornaments  in  the  service  can  only 


RITUAL  19 

be  justified  when  they  are  merely  auxiliary  or  subsidiary.  Thus  a 
credence  table  is  lawful  (Westerton  v.  Liddell,  1857,  Moore's  Report, 
p.  187 ;  and  Martin  v.  Mackonochie,  1868,  L.  R.  2  P.  C.  365). 

The  use  of  a  movable  cross  as  an  ornament  of  the  communion  table 
was  held  unlawful  in  Durst  v.  Masters,  1876, 1  P.  D.  123, 373,  apparently 
on  the  ground  that  a  cross  must  neither  actually  nor  apparently  form 
part  of  the  communion  table.  [Semhle,  a  tabernacle  for  reception  of 
reserved  sacrament  is  not  a  lawful  church  ornament  {Kensit  v.  Rector  of 
St.  Ethelhurga,  [1900]  P.  80).]  See  further,  Lights,  Ecclesiastical  (as 
to  candles  and  candlesticks). 

For  Retable  and  Super  Altar,  see  Communion,  Holy. 

4.  Ornaments  of  the  Minister. — See  Ornaments  Rubric  ;  Vestments. 

5.  &  6.  Ceremonies  and  Rites. — Sec.  24  of  the  Act  of  Uniformity, 
14  Car.  II.  c.  4,  enacts  that — 

The  several  statutes  now  in  force  for  the  uniformity  of  prayer  and  the 
administration  of  the  sacraments,  shall  stand  in  full  force — for  estabhshing 
and  confirming  the  present  Book  of  Common  Prayer. 

The  enactments  referred  to  are : — 

(1)  1  Eliz.  c.  2,  s.  3,  which  enacted  that  all  ministers  shall  be  bound  to 
say  and  use  the  Matins,  Evensong,  celebration  of  the  Lord's  Supper  and 
administration  of  each  of  the  sacraments,  and  all  the  common  and  open 
prayer  in  such  order  and  form  as  is  mentioned  in  the  said  book  [the  prayer- 
book  referred  to  in  5  &  6  Edw.  vl]  .  .  .  and  none  other  or  otherwise. 

(2)  1  Eliz.  c.  2,  s.  3,  imposes  a  penalty  on  any  minister  "  who  shall 
wilfully  or  obstinately  use  any  other  rite,  ceremony,  order,  form,  or  manner 
of  celebrating  the  Lord's  Supper  openly  or  privately,  or  Matins,  Evensong, 
administration  of  the  sacraments,  or  other  open  prayers  than  is  mentioned 
or  set  forth  in  the  said  book." 

The  result  is  that  any  rite  or  ceremony  not  authorised  by  the 
prayer-book  is  illegal,  and  in  Westerton  v.  lAddell  the  Privy  Council 
referred  emphatically  to  the  stringency  and  importance  of  these  pro- 
visions. 

In  the  performance  of  the  service  and  rights  and  ceremonies  of  the  Book 
of  Common  Prayer  the  directions  contained  in  it  must  be  strictly  observed ; 
no  omission  and  no  addition  can  be  permitted. 

To  this  general  statement  certain  minor  exceptions  must  be  admitted 
to  exist — justifiable  on  the  ground  of  long-continued  usage.  Thus  the 
legality  of  hymns,  and  of  the  words  usually  sung  before  and  after  the 
reading  of  the  gospel,  rests  solely  on  usage.     But  see  Uniformity. 

The  following  rites  and  ceremonies  have  produced  questions.  It 
will  be  observed  that  in  many  instances  the  difficulty  has  been  to 
■distinguish  between  an  additional  (and  so  unlawful)  rite  or  ceremony 
and  the  ornate  and  elaborate  carrying  out  of  a  prescribed  rite  or 
ceremony : — 

Ablution. — The  ceremonial  cleaning  of  the  communion  table,  accompanied 
by  prayers  and  gestures.  In  Read  v.  Bishop  of  Lincoln  the  defendant  was 
<;harged  with  this,  but  the  archbishop  ([1891]  P.  p.  30)  and  the  Privy 
Council  ([1892]  A.  C.  p.  659)  held  that  the  acts  admitted  by  the  defendant 
were  nothing  more  than  a  reverent  compliance  with  the  rubric,  and  did  not 
amount  to  a  separate  and  unlawful  ceremony. 

Acolyte. — Ceremonial  admission  of,  is  illegal  (Elphinstone  v.  Purchas,  1870, 
L.  R.  3  Ad.  &  Ec,  at  p.  97). 


20  EITUAL 

Alms. — The  rubric  directing  the  alms  to  be  placed  on  the  communion 
table,  it  is  unlawful  to  do  otherwise  (Martin  v.  Mackonochie,  1868,  L.  R. 
2  Ad.  &  Ec,  at  p.  218). 

Ashes. — The  ceremonial  use  of,  on  Ash  Wednesday,  is  unlawful  {Elphin- 
stone  V.  Furchas,  supra,  at  p.  97). 

Bells. — Ringing  a  bell  at  the  commencement  of  the  communion  service 
in  such  a  way  as  to  constitute  an  additional  ceremony,  is  unlawful  (Elphin- 
stme  V.  Furchas,  1870,  L.  R.  3  Ad.  &  Ec.  98). 

Cross  and  Crucifix. — Any  ceremonial  use  of  a  cross  or  crucifix  is  unlawful 
(Elphinstme  v.  Furchas,  1870,  L.  R.  3  Ad.  &  Ec.  66  ;  Hudson  v.  Tooth,  1877, 
2  P.  D.  125).    But  see  Ornaments  Rubric. 

Eastward  Fosition. — (a)  During  the  earlier  portion  of  the  communion 
service  it  is  not  unlawful  for  the  officiating  minister  to  stand  at  the  northern 
part  of  the  side  which  faces  westwards  (Bead  v.  Bishop  of  Lincoln,  [1892] 
A.  C,  at  p.  665).  (b)  During  the  consecration  prayers  a  position  on  the 
western  side  is  lawful,  subject  to  the  requirements  of  the  rubric  as  to  the 
visibility  of  the  manual  acts  being  satisfied  (Clifton  v.  Bidsdale,  1876,  7  P.  D. 
276  ;  Bead  v.  Bishop  of  Lincoln,  [1892]  A.  C,  at  p.  662). 

Elevation  of  the  Sacrament,  or  of  the  vessels  containing  it,  is  unlawful 
(Art.  28)  (Martin  v.  Mackmochie,  1868,  L.  R.  2  Ad.  &  Ec.  116 ;  2  P.  C.  365 ;. 
S.  C.  3  P.  C,  at  p.  417). 

Holidays. — It  is  not  lawful  to  announce  in  church  the  festivals  of  the 
"black  letter"  saints  (Elphinstone  v.  Furchas,  1870,  L.  R.  3  Ad.  &  Ec,  at 
p.  111). 

Holy  Water. — The  ceremonial  use  of  "  holy  water  "  is  clearly  unlawful. 
The  oflence  was  charged  in  Elphinstone  v.  Furchas,  1870,  L.  R.  3  Ad.  &  Ec, 
at  p.  108;  Hehhert  v.  Furchas,  1871,  L.  R.  3  P.  C,  at  p.  650,  but  was  held 
not  established  by  the  evidence.  Semhle,  a  "  holy  water  stoup "  is  one  of 
the  ornaments  covered  by  the  Ornaments  Rubric. 

Hymns. — The  legality  of  hymns  during  the  service  appears  to  rest  on 
usage.  The  Statute  2  &  3  Edw.  vi.  c  1,  s.  7,  only  permitted  "  to  use  openly 
any  psalm  or  prayer  taken  out  of  the  Bible  at  any  due  time,  not  letting  or 
omitting  thereby  the  service." 

In  Bead  v.  Bishop  of  Lincoln,  [1891]  P.  pp.  63-74,  the  archbishop  refers- 
the  legality  of  hymns  before  and  after  the  sermon  and  during  the  offertory 
to  continuous  usage,  and  held  that  the  singing  of  a  hymn  during  the  reception 
of  the  consecrated  elements  was  equally  lawful,  and  that  the  particular 
words  known  as  the  "Agnus  Dei"  were  not  unlawful.  The  Privy  Council 
affirmed  this  view,  thus  overruling  on  this  point  the  earlier  cases  of 
Elphinstone  v.  Furchas,  and  Clifton  v.  Bidsdale. 

Incense  — The  ceremonial  use  of  incense  in  any  form  is  unlawful  (Martin 
V.  Mackonochie,  1868,  L.  R.  2  Ad.  &  Ec,  at  p.  211;  Sumner  \.  Wise,  1870, 
L.  R.  3  Ad.  &  Ec.  58  ;  Elphinstme  v.  Furchas,  1870,  L.  R.  3  Ad.  &  Ec.  66,  99). 
But  see  article  Incense.  The  use  of  incense  or  the  like  for  purposes  of 
fumigation  between  services  is  of  course  legal. 

Kissing  the  Gospel  is  unlawful  (Elphinstone  v.  Furchas,  1870,  L.  R.  3  Ad. 
&Ec.,  at  p.  108  ;  Martin  v.  Mackonochie,  1874,  L.  R.  4  Ad.  &  Ec  279). 

Kneeling  before  the  Consecrated  Bread  and  Wine  is  contrary  to  the  rubric,, 
and  so  unlawful  (Martin  v.  Mackmochie,  1868,  L.  R.  2  P.  C.  365). 

Lights. — See  Lights,  Ecclesiastical. 

Manual  Acts. — The  rubric  which  requires  that  the  bread  shall  be  broken 
"  before  the  people,"  requires  that  the  officiating  clergyman  shall  intend  his^ 
action  to  be  visible  to  the  congregation  (Bead  v.  Bishop  of  Lincoln,  [1891} 
P.  pp.  58-63). 

Mixture  of  Water  with  the  Wine. — The  ceremonial  mixing  of  water  with  the 
wine  is  unlawful  (Martin  \.  Mackonochie,  1868,  L.  R.  3  Ad.  &  Ec,  at  p.  215). 
The  use  of  wine  mixed  with  water,  the  mixture  having  been  effected  prior 
to  the  commencement  of  the  service  is,  however,  not  unlawful  (Bead  v.. 


EIVERS  CONSERVANCY  21 

Bishop  of  Lincoln,  [1892]  A.  C,  at  p.  657),  not  following  the  decision  the 
other  way  in  Hebhert  v.  Purchas,  1871,  L.  R.  3  P.  C.  605. 

Prayers  for  the  Dead  as  a  part  of  the  service  is  illegal  {Elphinstone  v. 
Purchas,  1870,  L.  R.  2  Ad.  &  Ec.  98).  And  see  Prayers  for  the 
Dead. 

Processions. — Processions  amounting  to  a  ceremonial  addition  to  the 
service  are  illegal  {Elphinstone.  v.  Purchas,  1870,  L.  R.  3  Ad.  &  Ec,  at  p.  95; 
Martin  v.  Mackonochie,  1874,  L.  R.  4  Ad.  &  Ec,  at  p.  280).  As  to  relics, 
see  Injunctions,  Edw.  VI.  9. 

Eeservation  of  the  Sacrament  is  unlawful  (see  the  rubric  at  the  end  of  the 
Communion  Service). 

Sign  of  the  Cross. — Any  ceremonial  use  of  the  sign  of  the  cross  in  the 
benediction  and  in  the  communion  office  is  unlawful  {Bead  v.  Bishop  of  Lincoln, 
[18911  P-,  at  pp.  88-94). 

JVafers. — The  rubric  prescribes  the  material  (pure  wheaten  bread),  but 
not  the  shape  of  the  bread  to  be  used  in  the  communion  service.  Hence 
the  use  of  bread  cut  into  wafers  is  legal,  but  the  use  of  wafers  not  of  ordinary 
(leavened)  bread  is  unlawful  (Elphinstmie  v.  Purclms,  1870,  L.  R.  3  Ad.  &  Ec, 
at  p.  66 ;  Hebhert  v.  Purchas,  1871,  L.  R.  3  P.  C.  605  ;  Martin  v.  Mackonochie 
(2nd  suit),  1874,  L.  R.  4  Ad.  &  Ec  279;  Clifton  v.  Eidsdale,  1877,  2  P.  D. 
276). 

6.  Miscellaneous. — As  to  proceedings  against  a  clergyman  for  the 
use  of  unlawful  ritual,  see  Public  Worship  Regulation  Act. 

[Authorities. — Talbot,  Modern  Decisions  on  Mitual,  1894 ;  Phillimore, 
Ecclesiastical  Law ;  Westerton  v.  Liddell,  Moore's  Special  Report;  The 
Folkestone  Ritual  Case  {Clifton  v.  Ridsdale,  1878);  The  Lincoln  Case, 
Roscoe.'] 

Rived.re. — To  have  the  liberty  of  a  river  for  fishing  or  fowling 
(Cowell,  Law  DictioTiary). 

Rivers. — The  law  as  to  rivers  is  dealt  with  in  this  work  under 
the  following  headings : — Ad  medium  filum  viae  ;  Waterway  (where 
also  the  subjects  of  the  rights  of  riparian  owners  in,  and  rights  of 
access  to,  rivers  and  streams,  and  of  the  navigation  of  rivers,  and 
navigable  rivers,  are  considered);  Rivers  Pollution;  Rivers  Conser- 
vancy; Rivers,  International;  Thames;  Mersey;  Humber  Rules; 
see  also  Territorial  Waters. 

Rivers  Conservancy. — "The  office  of  conservancy,"  as 
defined  by  Lord  Hale,  relates,  first  to  nuisances  in  rivers  founded  on 
the  Statute  1  Hen.  iv.  c.  12,  and,  second,  to  fishing,  founded  on  the 
Statute  Westminster  2,  c.  47,  for  the  protection  of  salmon ;  but  the 
term  has  now  been  extended  to  include  the  prevention  of  pollution  and 
control  over  authorities  utilising  rivers  for  the  purpose  of  water  supply 
(Hale,  de  Jure  Maris,  Harg.  Tr.,  p.  23;  17  Rich.  n.  c.  9;  1  Eliz.  c.  17; 
Thames  Conservancy  Act,  1894,  ss.  90-108,  291-298 ;  Lee  Conservancy 
Act,  1868,  preamble  and  ss.  89-92). 

The  conservancy  of  navigation  was  originally  intrusted  to  the  Crown, 
which  had  a  "jurisdiction  to  reform  and  punish  nuisances  in  all  rivers, 
whether  fresh  or  salt,  that  are  a  common  passage  not  only  for  ships  and 
greater  vessels,  but  also  for  smaller,  as  boats  and  barges  "  (Hale,  de  Jure 
Maris,  Harg.  Tr.,  p.  8 ;  Woolrych  on  Sewers,  p.  3 ;  William  v.  Wilcox, 
1838,  8  Ad.  &  E.  333 ;  47  R.  R.  595).     By  6  Hen.  vl  c.  5,  this  preroga- 

/ 


22  KIVERS  CONSEEVANCY 

tive,  together  with  that  of  protecting  land  from  the  inroads  of  the  sea, 
was  delegated  to  Commissioners  of  Sewers  who,  in  addition  to  their 
functions  as  to  sea  walls  and  sewers,  exercised  jurisdiction  over  navig- 
able rivers,  bridges,  mills,  and  other  things  incident  to  river  conservancy. 
The  inconvenience  of  the  temporary  duration  of  these  commissions  and 
the  development  of  inland  navigation  led,  however,  to  the  gradual 
transfer  of  their  powers  to  conservators  created  by  special  Acts  for  each 
particular  river,  the  authority  of  Commissioners  of  Sewers  being  appar- 
ently sometimes  retained  by  means  of  a  special  proviso  in  the  incor- 
porating Act  (Woolrych  on  Sewers,  p.  49).  So,  too,  the  Salmon  Fishery 
Acts,  1861  to  1876,  and  the  Fresh  Water  Fisheries  Act,  1878,  have 
vested  the  supervision  of  the  conservancy  of  fishing  in  the  Home  Office, 
which  may  empower  Courts  of  Quarter  Sessions  to  establish  fishery 
districts  under  boards  of  conservators  in  all  waters  frequented  by 
salmon,  trout,  and  char  in  England  and  Wales,  except  where  special 
Acts  are  in  force — as  in  Norfolk  and  Suffolk,  the  Thames  (the  fishing  in 
which  is  controlled  by  the  conservators  of  the  navigation),  and  the 
Severn  (40  &  41  Vict.  c.  89,  and  59  &  60  Vict.  c.  18  (Norfolk  and  Suffolk) ; 
Thames  Conservancy  Act,  1894,  p.  191 ;  18  Geo.  iii.  c.  3 ;  and  39  &  40 
Vict.  c.  43  (Severn)). 

The  Acts  relating  to  inland  navigation  provide  for — (1)  restoring  or 
improving  the  navigation  of  navigable  rivers ;  (2)  making  unnavigable 
rivers  navigable;  and  (3)  the  construction  of  artificial  navigations  or 
canals  (23  Geo.  ill.  c.  48  (improving  the  navigation  of  the  Trent) ;  16  & 
17  Car.  II.  c.  12  (making  the  Wiltshire  Avon  navigable) ;  33  Geo.  in. 
c.  80  (Grand  Junction  Canal)). 

The  first  two  classes  of  Acts  vest  the  conservancy  of  a  river  in 
commissioners,  municipal  authorities,  or  some  other  body  corporate, 
empowering  them  to  dredge  and  scour  the  bed  of  the  stream  and  remove 
obstructions;  to  make  by-laws  regulating  the  navigation,  and,  where 
necessary,  to  enter  on  lands  making  compensation  for  injuries  arising 
through  their  acts  (2  &  3  Vict.  c.  61  (improving  the  navigation  of  the 
Shannon);  31  Geo.  in.  c.  66  (making  the  Eother  navigable)).  As  none 
of  the  public  rights  subsisting  in  navigable  rivers  can  attach  to  those 
made  navigable,  conservators  of  the  latter  have  apparently  greater 
rights  as  against  the  public  than  conservators  of  the  former  class  of 
rivers  {Hargreaves  v.  Diddams,  1875,  L.  K.  10  Q.  B.  582 ;  Musset  v.  Burch, 
1876,  35  L.  T.  K  S.  486 ;  B.  v.  Betts,  1851,  16  Q.  B.  1022).  Conservators 
under  both  classes  of  Acts  are,  however,  bound  to  apply  the  profits  of 
the  navigation  for  the  benefit  of  the  public,  and  have  usually  a  mere 
possession  of  the  soil  for  the  purpose  of  improving  it.  The  Thames 
Conservancy  Acts  vest  the  soil  of  the  bed  of  the  river  in  the  con- 
servators ;  but  it  has  been  held  that  if  the  words  of  an  Act  vesting  a 
river  or  navigation  in  a  board  of  conservators  are  applicable  only  to  the 
acquisition  of  the  right  of  passage,  and  the  ownership  of  the  soil  is  not 
necessary  for  the  purposes  of  the  Act,  such  ownership  must  be  taken 
not  to  pass  {Lee  Conservancy  v.  Button,  1880,  12  Ch.  D.  383 ;  Badger  v. 
Ym^ksUre  Bly.  Co.,  1859,  5  Jur.  K  S.  409 ;  Hollis  v.  Goldfinch,  1823, 
1  Barn.  &  Cress.  206 ;  25  E.  E.  357 ;  B.  v.  Aire  and  Colder,  1829,  9  Barn. 
&  Cress.  820 ;  33  E.  E.  344).  The  banks  of  navigable  rivers  are  the 
property  of  the  riparian  owners,  and  the  rights  of  such  owners  are  not 
extinguished  where  the  course  of  a  river  is  straightened  by  the  con- 
servators, who  have  a  mere  legal  right  of  entry  without  possession.  A 
Eoyal  Charter  purporting   to  confer  upon  a  patentee   the   exclusive 


EIVEES  CONSERVANCY  23 

navigation  for  all  time  of  a  part  of  a  public  navigable  river  is  void  both 
by  the  Statute  of  Monopolies,  1623,  and  by  the  common  law  {Simpson 
V.  A.-G.,  1905,  20  T.  L.  R.  761,  H.  L.  E.).  There  is  no  common-law  right 
in  the  public  of  landing,  mooring,  or  towing  on  the  banks,  such  rights 
being  founded  solely  on  custom  {Lee  Conservancy  v.  Button,  1880,  12 
Ch.  D.  383;  Ball  v.  Eerhert,  1789,  3  T.  R.  283;  1  R.  R.  695;  Winch  v. 
Conservators  of  the  Thames,  1872,  L.  R.  7  C.  P.  471 ;  Lyony.  Fishmongers 
Co.,  1876,  1  App.  Cas.  662). 

The  third  class  of  statutes,  while  nearly  identical  with  the  other  two 
as  regards  the  preservation  of  navigation  and  compensation  for  injuries, 
usually  provide  that  the  canal  should  be  constructed  in  accordance  with 
plans  approved  by  the  Admiralty  or  the  Board  of  Trade.  They  also 
generally  vest  the  ownership  of  the  soil  absolutely  in  the  company,  who 
maintain  the  navigation  primarily  for  their  private  advantage,  and  not, 
as  the  conservators  of  a  river,  for  the  benefit  of  the  public.  Canals  are, 
apparently,  real  property,  and  the  tolls  being  the  profits  arising  from  the 
use  of  land  for  a  particular  purpose  are  given  to  the  proprietors  as  a 
compensation  for  such  use  {Stourbridge  Canal  v.  Wheeley,  1831,  2  Barn. 
«&  Aid.  792;  R.  v.  Nicholson,  1810,  12  East,  330;  11  R.  R.  398;  3Ianly 
V.  St.  Helen's  Canal  Co.,  1857,  2  H.  &  N.  840). 

Where  the  navigation  of  a  river  is  vested  in  a  body  of  conservators 
for  the  purposes  of  navigation,  no  action  will  lie  against  them  for  damages 
through  overflow  arising  from  natural  obstructions,  although  tolls  are 
taken  for  the  navigation.  Their  only  duty  is  to  protect  the  navigation, 
and  they  are  not  liable  in  respect  of  matters  not  essential  to  its  im- 
provement {Barrett  Navigation  Co.  v.  Robins,  1843,  10  Mee.  &  "W,  593 ; 
62  R.  R.  713  ;  Hodgson  v.  Mayor  of  York,  1869,  20  L.  T.  N.  S.  856 ; 
Forbes  v.  Lee  Conservancy,  1879,  4  Ex.  D.  116 ;  Cracknell  v.  Mayor  and 
Corporation  of  Thetford,  1869,  L.  R.  4  C.  P.  629).  In  the  absence  of  any 
express  provision  to  that  effect  in  the  original  Incorporating  Act  there 
is  no  obligation  on  navigation  commissioners  to  keep  in  repair  "  flood 
banks  "  erected  outside  the  natural  banks  of  a  river  ( Vyner  v.  North- 
EasternRly.  Co.,  1904,  20  T.  L.  R.  192,  C.  A.);  and  the  prevention  of 
floods  may  be  entrusted  to  an  authority  other  than  the  conservators, 
as  in  the  case  of  the  Thames,  with  respect  to  which  the  consent  of  the 
London  County  Council  is  required  for  the  repair  of  flood-banks,  under 
sec.  23  of  the  Metropolis  Management  (Thames  Floods  Prevention) 
Amendment  Act,  1897  {London  Coimty  Council  v.  London,  Brighton,  and 
South  Coast  Rly.  Co.,  1906,  75  L.  J,  K.  B.  613).  If,  however,  the  exercise 
of  their  powers  may  occasion — not  only  while  originally  extending  the 
necessary  works  for  the  required  purposes,  but  at  recurring  intervals 
afterwards — inconvenience  or  injury  to  others,  the  conservators  are 
apparently  bound  to  take  measures  from  time  to  time  to  prevent  the 
occurrence  of  such  inconvenience  and  injury  {Geddis  v.  Bann  Reservoir, 
1877,  3  App.  Cas.  430).  Their  rights  are  not  paramount  but  subject  to 
private  rights,  and  must  be  exercised  in  strict  conformity  therewith 
{East  London  Rly.  Co.  v.  The  Conservators  of  the  River  Thames,  1904,  20 
T.  L.  R.  378).  The  liability  in  this  respect  of  owners  of  canals,  which 
are  generally  constructed  on  the  land  of  others,  is  necessarily  greater 
than  that  of  river  conservators,  since  they  are  personally  responsible 
under  their  Acts  for  mischief  arising  from  negligence  or  mismanagement 
{Manly  v.  St.  Helen's  Canal  Co.,  1857,  2  H.  &  N.  840 ;  Bramlett  v.  Tees 
Conservancy  Commissioners,  1885,  49  J,  P.  214  D. ;  Evans  v.  Manchester, 
Sheffield  and  Lincoln  Rly.  Co.,  1887,  36  Ch.  D.  626).     A  canal  company 


24  EIVERS  CONSERVANCY 

is,  however,  entitled  to  exercise  powers  conferred  on  it  by  Act  of  Parlia- 
ment to  draw  water  from  a  river  for  the  purposes  of  the  canal,  making 
compensation  for  damages  resulting  from  this  user,  and  the  remedy  of 
millowners  on  the  river  for  interference  with  the  supply  to  their  mills  is 
under  the  compensation  clauses  of  the  Acts  {Bedler  v.  Grreat  Western 
Bly.  Co.,  1907,  96  L.  T.  98,  H.  L.). 

At  common  law,  independent  of  statute,  neither  the  owners  of  a 
navigation  nor  a  board  of  conservators  are,  apparently,  bound  to  keep 
the  navigation  open  or  in  a  proper  state  of  repair.  There  is  no  pre- 
sumption in  favour  of  the  legal  obligation  of  an  immemorial  burden,  and 
an  Act  of  Parliament,  authorising  and  empowering  a  person  to  cleanse, 
scour,  and  deepen  a  river  when  and  as  often  as  occasion  shall  require  in 
order  to  improve  the  passage  of  boats,  although  intended  to  serve  a 
public  purpose,  must  be  construed  as  permissive  and  not  obligatory.  A 
person  who,  under  a  patent  or  statute,  has  succeeded  to  the  ownership 
of  locks  or  other  mechanical  appliances  for  facilitating  navigation,  with 
the  right  to  charge  a  reasonable  toll  for  their  use,  is  therefore  not  bound 
to  work  or  keep  them  in  repair  to  his  own  detriment  if  the  tolls  are 
insufficient  to  defray  the  cost  of  maintenance  and  repairs,  and  is  justified 
in  closing  them  altogether  {Simpson  v.  A.-G.,  1905,  20  T.  L.  E.  761, 
H.  L.  E.).  A  company  whose  canal  has  been  constructed  under  statutory 
powers  which  are  permissive  and  not  obligatory  cannot  be  compelled 
under  the  "  reasonable  facilities "  clause  of  the  Railway  and  Canal 
Traffic  Acts  to  reopen  a  part  of  a  branch  from  the  main  canal  which  has 
been  closed  after  some  years'  user  owing  to  scarcity  of  water,  and  used 
only  as  a  feeder,  if  the  cost  of  restoring  and  maintaining  the  whole 
branch  has  been  shown  to  be  far  in  excess  of  any  advantage  likely  to 
accrue  either  to  the  applicants  and  persons  using  the  branch  or  to  the 
company  {Rothschild  {Lord)  v.  Grand  Junction  Canal  Co.,  1906,  91  L.  T. 
386).  So  long,  however,  as  they  choose  to  keep  it  open  and  take  tolls  for 
its  use,  even  where  such  tolls  are  not  for  their  own  profit  but  for  the 
maintenance  of  the  navigation,  they  are  under  an  obligation  to  take 
reasonable  care  that  persons  using  it  are  exposed  to  no  undue  danger 
{Parnaby  v.  Lancaster  Canal,  1840,  11  Ad.  &  E.  223;  52  R.  R.  329; 
Mersey  Docks  v.  Gihhs,  1866,  L.  R.  1  H.  L.  93 ;  Winch  v.  Conservators  of 
the  Thames,  1872,  L.  R.  9  C.  P.  378 ;  L.  R.  7  C.  P.  471),  and  are  bound 
to  use  reasonable  care  keeping  the  river  free  from  obstructions  dangerous 
to  navigation  {Queen  of  the  River  Steainship  Co.  v.  Conservators  of  the 
River  Thames  and  Easton,  Gibh  &  Son,  1907,  23  T.  L.  R.  478).  A  canal 
company  is  liable  to  be  sued  by  traders  using  their  canal  for  a  breach  of 
an  obligation  imposed  by  Act  of  Parliament  of  dredging  the  bed  of  a 
river  in  such  a  manner  that  there  shall  at  all  times  be  a  prescribed 
depth  of  water  at  low  water  of  spring  tides  between  certain  limits 
{Crossfield  v.  Manchester  Ship  Canal  (No.  2),  1906,  22  T.  L.  R.  192  C.  A.). 
A  company  which  has  agreed  under  a  private  Act  to  discharge  the  waste 
water  of  its  canal — i.e.  all  the  water  not  legitimately  needed  for  the  pur- 
poses of  the  navigation — into  another  canal  may  be  restrained  from 
supplying  such  waste  water  for  manufacturing  works  adjoining  its  own 
canal  {Rochdale  Canal  Co.  v.  Manchester  Ship  Canal,  1902,  85  L.  T.  585, 
H.  L.  E.). 

The  prevention  of  obstructions  to  navigation  from  barges  moored  in 
rivers  and  docks  is  usually  provided  for  in  the  by-laws  issued  by  con- 
servators. The  question  whether  it  is  negligent  to  leave  a  moored  barge 
unattended  is  one  of  fact,  but  it  is  not  negligent  to  do  so  if  there  is  no 


EIVERS,  INTEENATIONAL  25 

reasonable  ground  to  anticipate  danger  to  the  barge  {The  Western  Belle, 
1906,  95  L.  T.  364).  Lighters  lashed  together  with  a  rope,  and  pushed 
by  means  of  a  staff  along  the  shore  until  they  reached  a  moored  barge, 
have  been  held  not  to  be  "  navigated  "  within  the  meaning  of  sec.  66  of 
the  Watermen's  and  Lightermen's  Act,  1859 ;  so,  too,  a  lighter  with  a 
man  on  board,  which  was  carried  five  hundred  yards  owing  to  the  failure 
of  the  anchor  to  hold  {Gardiur,  Locket  &  Hinton  v.  Doe,  [1906]  2  K.  B. 
174). 

There  are  various  general  enactments  relating  to  river  conservancy, 
such  as  54  Geo.  iii.  c.  159,  s.  11  (prohibiting  casting  rubbish  into 
navigable  rivers);  the  Malicious  Injuries  to  Property  Act,  s.  30;  the 
Railway  Clauses  Act,  1863,  ss.  14-19 ;  the  Rivers  Pollution  Prevention 
Acts,  1876  and  1893;  the  Railway  and  Canal  Traffic  Acts,  1873  and 
1888 ;  and  the  Canal  Boats  Acts,  1877  and  1884. 

Rivers,  International. — A  special  regime  governs  rivers 
which  pass  through  the  territory  of  two  or  more  States.  Though  they 
form  part  of  the  territory  through  which  they  flow,  they  are  open  to 
navigation  by  the  trading  vessels  of  all  nations.  This  rule  is  of  com- 
paratively recent  origin.  The  Treaty  of  Paris  of  1783  declared  the 
whole  navigable  Mississippi  open  to  the  traffic  of  the  vessels  of  the 
two  Powers  (Great  Britain  and  the  United  States)  established  on  its 
banks.  This  was  perhaps  the  first  modern  step  towards  the  new  rule. 
In  1792  the  then  French  Republic,  declaring  the  principle  that  water- 
courses are  the  common  and  inalienable  property  of  all  the  countries 
through  which  they  pass,  opened  the  Scheldt  and  the  Meuse  to  free 
navigation.  The  Treaty  of  The  Hague,  May  16,  1795,  stipulated  that 
the  Rhine,  Meuse,  Scheldt,  and  Hondt  should  be  open  to  the  French 
and  Dutch ;  and  that  of  Campo-Formio  (1797)  contained  a  similar  pro- 
vision for  the  rivers  flowing  through  the  Austrian  possessions  of  Italy 
and  the  Cisalpine  Republic.  The  ground  was  therefore  prepared  when 
the  new  principle  of  freedom  of  navigation  generally  was  laid  down 
in  the  Treaty  of  Paris  of  May  30,  1814.  By  article  5  of  this  treaty, 
the  navigation  of  the  Rhine  along  its  whole  navigable  length  was 
made  free  to  all  mankind.  The  same  article  states  that  the  future 
congress,  for  which  provision  was  made — 

Shall  examine  and  decide  in  what  way  to  facilitate  communica- 
tions among  peoples,  and  render  them  less  strangers  to  one  another. 
The  foregoing  provision  shall  be  extended  also  to  other  rivers  which, 
in  their  navigable  courses,  separate  and  traverse  different  States. 

The  future  congress  was  that  of  Vienna,  June  9,  1815.  It  applied 
the  above  principle  to  the  Rhine  and  its  tributaries  and  the  Scheldt. 
Articles  108-116  of  the  treaty  laid  down  the  detailed  rules  which, 
among  the  signatory  Powers,  were  henceforth  to  be  applied  to  carry 
out  the  principle  of  freedom  of  international  rivers. 

The  Treaty  of  Paris,  1856,  extended  the  same  principle  to  the 
Danube  (art.  15  of  the  treaty  of  30th  March).  It  furthermore  declared 
that  "  this  provision  henceforth  forms  part  of  the  public  law  of  Europe," 
and  the  signatory  Powers  "  take  it  under  their  guarantee  "  (art.  15). 

The  general  Act  of  Berlin,  February  26,  1885,  applied  the  same 
principle  as  regards  the  Congo  (arts.  2-4  and  13-25),  declaring  that 
not  only  this  river  and  its  tributaries   shall  be  open  "to  all   flags. 


26  EIVEES  POLLUTION 

without  distinction  of  nationality,"  but  also  the  lakes  and  ports 
situated  on  its  banks,  and  the  canals  by  which  they  or  different  parts 
of  the  river  may  be  connected  (art.  2),  and  roads  or  railways  which  may 
supplement  these  means  of  communication  (art.  16). 

Similar  provisions  are  made  as  regards  the  Niger  (arts.  26-33).  See 
articles  25  and  33  of  the  general  Act  as  to  the  neutralisation  of  the 
Congo  and  Niger,  under  which  traffic  is  to  remain  free  in  spite  of  war 
on  the  rivers  in  question  and  their  tributaries,  the  territorial  waters 
facing  their  estuaries,  and  the  roads,  railways,  lakes,  and  canals  above 
mentioned. 

Territorial  changes  may  convert  an  international  into  a  national 
river,  but  the  rights  acquired  when  it  was  free  subsist  in  spite  of  the 
change.  Thus  the  Po  has  remained  international.  The  Mississippi  was 
never  free  to  all  nations,  and  is  now  entirely  American. 

See  Thalweg  ;  Canals,  Interoceanic. 

[Authorities. — Engelhardt,  Du  regime  conventionnel  des  fleuves  inter- 
nationaux,  etudes  et  projet  de  Hglement  gdndral,  Paris,  1879  (contains  a 
list  of  the  treaties,  conventions,  and  regulations  concerning  international 
rivers) ;  Holtzendorff,  Rumdniens  Uferrechte  an  der  Donau,  Leipzig,  1883  ; 
Engelhardt,  Histoire  du  droit  fiuvial  conventionnel,  Paris,  1889 ;  Cara- 
th6opory,  Le  droit  international  concernant  les  grands  cours  d'eau,  Paris, 
1861 ;  Kazansky,  Les  fleuves  conventionnels,  Paris,  1895 ;  Calvo,  Le  droit 
international,  vol.  i.  (s.  337),  Paris  and  Berlin,  1887.] 

Rivers  Pollution. — Interference  with  water  flowing  in  a 
defined  channel,  so  as  to  injure  its  purity  or  volume,  is  a  Nuisance  at 
common  law  (see  Vol.  X.  p.  80),  which  may  be  restrained  by  action  at 
the  suit  of  an  individual  aggrieved,  or  by  proceedings  on  behalf  of  the 
public.  Many  such  actions,  as  the  reports  show,  have  been  brought 
successfully.  But  pollution  of  streams,  especially  by  the  discharge  into 
them  of  sewage  or  manufacturing  refuse,  has  often  been  continued  so 
long  as  to  give  the  offenders  prescriptive  rights,  which  could  not  be 
interfered  with  under  the  ordinary  law.  Many  streams,  once  pure,  had 
with  the  growth  of  manufactures  and  population  become  so  seriously 
polluted  as  to  be  dangerous  to  the  public  health.  Accordingly,  in  1876, 
Parliament  passed  a  special  Act  for  checking  the  further  pollution  of 
rivers  (39  &  40  Vict.  c.  75).  It  recited  that  "  it  was  expedient  to  make 
further  provision  for  the  prevention  of  the  pollution  of  rivers,  and 
especially  to  prevent  the  establishment  of  new  sources  of  pollution," 
It  deals  with  three  chief  causes  of  offence,  viz. — (1)  The  obstruction 
or  pollution  of  streams  by  solid  refuse;  (2)  their  pollution  by  sewage 
matter,  whether  solid  or  liquid ;  (3)  their  pollution  by  noxious  liquids 
proceeding  from  factories,  or  produced  in  the  process  of  any  manufac- 
ture. The  provisions  as  to  these  three  kinds  of  pollution  are  somewhat 
different,  and  must  be  considered  separately. 

The  word  stream  is  defined  by  sec.  20  to  include  all  inland  rivers, 
streams,  canals,  lakes,  and  watercourses,  and  the  sea  and  tidal  waters  to 
such  extent  as  may  be  determined  to  be  streams  on  sanitary  grounds,  by 
order  of  the  Local  Government  Board.  Watercourses  which  in  1876 
were  mainly  used  as  sewers,  and  empty  directly  into  the  sea  or  into 
tidal  waters  not  determined  to  be  streams,  are  excepted  from  this 
definition.  Such  watercourses  are  therefore,  it  would  seem,  not  within 
the  purview  of  the  Act,  and  must  be  dealt  with  under  the  general  law, 
if  at  all. 


EIVERS  POLLUTION  27 

1.  Solid  Matters. — It  is  declared  to  be  an  offence  to  put  or  cause  or 
knowingly  permit  the  solid  refuse  of  any  manufactory,  manufacturing 
process  or  quarry,  or  any  rubbish  or  cinders,  or  any  other  waste,  or  any 
putrid  solid  matter,  to  fall  into  any  stream,  so  as  to  interfere  with  its 
due  flow  or  to  pollute  its  waters  (s.  2).  It  is  sufficient  to  show  repeated 
acts  which  together  cause  such  interference  or  pollution,  although  each 
act,  taken  by  itself,  may  be  insufficient  for  that  purpose  (ibid.).  It  is 
also  an  offence  to  cause  or  knowingly  permit  to  fall  or  flow,  or  to  be 
carried  into  any  stream,  any  solid  matter  from  any  mine  in  such 
quantities  as  to  prejvdicially  interfere  with  its  due  flow  (s.  5). 

2.  Sewage  Pollutions. — Sewage  may  find  its  way  into  streams  through 
the  acts  (a)  of  individuals  or  firms,  and  (b)  of  sanitary  authorities.  The 
Act  of  1876  declares  it  to  be  an  offence  to  cause  or  knowingly  to  permit 
any  solid  or  liquid  sewage  matter  to  fall  or  flow  or  to  be  carried  into 
any  stream.  But  where  it  gets  there  after  passing  along  a  channel 
already,  in  1876,  used,  constructed,  or  in  the  process  of  construction  for 
the  purposes  of  conveying  such  sewage  matter,  no  offence  is  committed, 
as  long  as  the  best  practicable  and  available  means  are  used  to  render 
harmless  the  sewage  so  passing.  If  such  means  are  not  used,  every 
person  who  allows  sewage  to  get  into  and  pass  along  such  channel  so  as 
to  pollute  a  stream  is  in  the  eye  of  the  law  guilty  of  an  offence  (Kirk- 
heaton  Board  v.  Ainley,  [1892]  2  Q.  B.  274).  But  a  person,  other  than 
a  sanitary  authority,  is  declared  not  guilty  of  an  offence  merely  for 
passing  sewage  into  a  stream  through  a  sewer  belonging  to  or  under  the 
control  of  a  sanitary  authority,  provided  he  has  their  consent  for  so 
doing  (s.  3).  In  many  cases  he  may  by  prescription,  or  under  sec.  21 
of  the  Public  Health  Act,  1875,  have  a  right  to  send  sewage  along  such 
sewer.  In  such  cases  the  sanction  cannot  be  withheld.  Sanitary 
authorities  are  bound  under  the  Public  Health  Act,  as  well  as  under 
this  Act,  to  prevent  unpurified  sewage  finding  its  way  into  any  stream ; 
and  the  fact  that  it  does  so  find  its  way  along  a  previously  existing 
channel  is  no  answer  to  a  complaint  under  this  section  {Yorkshire  C.  C. 
v.  Homfirth  U.  S.  A.,  [1894]  2  Q.  B.  842).  To  prevent  any  doubt  on 
the  matter.  Parliament  has  declared  that  where  any  sewage  matter  falls 
or  flows  or  is  carried  into  any  stream  after  passing  along  a  channel 
which  is  vested  in  a  sanitary  authority,  that  authority  shall  be  deemed 
to  knowingly  permit  the  sewage  matter  so  to  fall,  flow,  or  be  carried 
(56  &  57  Vict.  c.  31,  s.  1),  and  consequently  be  deemed  to  have  com- 
mitted an  offence  under  sec.  3  of  the  Act  of  1876.  The  authority  may 
either  be  proceeded  against  under  this  Act  or  be  ordered  to  provide 
proper  sewers  under  sec.  299  of  the  Public  Health  Act,  1875,  subject 
to  the  absolute  control  of  the  Local  Government  Board ;  but  cannot  be 
proceeded  against  by  mandamus  {Peebles  v.  Oswaldtwistle  U.  D.  C,  [1897] 
1  Q.  B.  625).  The  Board,  in  cases  where  sewage  was  in  1876  discharged 
into  a  stream,  may  give  a  sanitary  authority  time,  for  the  purpose  of 
enabling  it  to  adopt  the  best  practicable  and  available  means  for  ren- 
dering such  sewage  harmless ;  and  may  from  time  to  time  renew  such 
order,  subject  to  such  conditions,  if  any,  as  they  deem  right  (Act  of 
1876,  s.  3). 

Manufacturing  and  Mining  Pollutions. — Every  person  commits  an 
offence  who  causes  or  knowingly  permits  any  poisonous,  noxious,  or 
polluting  liquid,  proceeding  from  any  factory  or  manufacturing  process, 
to  fall,  flow,  or  be  carried  into  any  stream.  But  if  such  liquid  only 
passes  along  a  channel  existing  in  1876,  or  along  a  new  channel  con- 


28  KIVERS  POLLUTION 

structed  in  substitution  thereof,  and  having  its  outfall  at  the  same  spot, 
no  offence  is  committed,  if  the  best  practicable  and  reasonably  available 
means  are  used  to  render  harmless  the  liquid  so  falling,  or  flowing,  or 
carried  into  the  stream  (s.  4). 

Sanitary  and  other  authorities  having  sewers  under  their  control 
must  give  facilities  for  enabling  manufacturers  within  their  district  to 
carry  the  liquids  proceeding  from  their  factories  or  manufacturing  pro- 
cesses into  such  sewers,  provided  that  the  sewers  are  large  enough,  and 
that  the  liquid  would  not  prejudicially  affect  either  the  sewers  them- 
selves or  the  disposal  of  the  sewage,  or  from  its  temperature,  or  otherwise, 
be  injurious  from  a  sanitary  point  of  view  (s.  7).  This  may  be  enforced 
in  proper  cases  by  an  order  of  the  County  Court,  under  sec.  10,  infra 
{Peebles  v.  Oswcddtmistle  U.  D.  C,  [1897]  1  Q.  B.  384). 

It  is  also  declared  to  be  an  offence  to  cause,  or  permit  to  get  into 
a  stream,  any  poisonous,  noxious,  or  polluting,  solid,  or  liquid  matter, 
proceeding  from  a  mine  (other  than  water  in  the  same  condition  as  that 
in  which  it  has  been  drained  or  raised  from  such  mine),  unless  the 
best  practicable  and  reasonably  available  means  are  used  to  render  such 
poisonous,  noxious,  or  polluting  matter  harmless  (s.  5). 

Proceedings  may  not  be  taken  in  respect  of  manufacturing  or  mining 
pollutions  except  by  sanitary  authority,  nor  then  without  the  consent 
of  the  Local  Government  Board.  But  a  person  interested  may  apply  to 
them  to  direct  the  sanitary  authority  to  take  proceedings.  The  Board, 
in  giving  or  withholding  their  consent,  are  to  have  regard  to  the  industrial 
interests  involved,  and  to  the  circumstances  and  requirements  of  the 
locality.  They  are  not  to  give  their  consent  to  proceedings  in  any 
district  which  is  the  seat  of  any  manufacturing  industry,  unless  they 
are  satisfied  that  means  are  reasonably  available  and  practicable  for 
rendering  harmless  the  poisonous,  noxious,  or  polluting  liquids  pro- 
ceeding from  the  processes  of  such  manufactures,  and  that  no  material 
injury  will  be  inflicted  on  the  interests  of  the  industry  by  the  proposed 
proceedings.  Notwithstanding  their  consent,  the  alleged  offender  may 
still  object  before  the  sanitary  authority  to  the  proposed  proceedings ; 
and  after  inquiry,  such  authority  shall  determine  whether  such 
proceedings  shall  or  shall  not  be  taken  (s.  6). 

Proceedirigs  to  Enforce. — The  power  of  enforcing  compliance  with  the 
provisions  of  the  Act  is  conferred  on  every  sanitary  authority  in  rela- 
tion to  any  stream  being  within,  or  passing  through  or  by  any  part  of 
their  district.  For  that  purpose  they  may  institute  proceedings  in 
respect  of  any  offence  which  causes  interference  with  the  due  flow  or 
pollution  of  any  such  stream  within  their  district  wherever  the  offence 
may  be  actually  committed.  Any  person  aggrieved  by  the  commission 
of  an  offence  may  also  institute  proceedings  (s.  8).  It  was  found  in 
practice  that  authorities  or  persons  thus  entitled  to  institute  proceed- 
ings did  not  always  enforce  their  rights — in  regard  to  sewage,  sanitary 
authorities  are  often  the  chief  offenders — and  that  much  remediable 
pollution  consequently  continued  unchecked.  Accordingly,  when  County 
Councils  were  created  in  1888,  they  were  empowered,  in  addition  to 
any  other  authority,  to  enforce  the  provisions  of  the  Rivers  Pollution 
Prevention  Act,  in  relation  to  so  much  of  any  stream  as  is  situated 
within,  or  passes  through  or  by  any  part  of  their  county,  as  if  they 
were  a  sanitary  authority,  or  any  other  authority  having  power  to  en- 
force the  provisions  of  that  Act.  They  were  also  empowered  to  contri- 
bute towards  the  costs  of  a  prosecution  instituted  by  another  authority. 


KOLLING  STOCK  29 

Further,  the  Local  Government  Board  may  now,  by  Provisional  Order, 
constitute  a  joint-committee  representing  all  the  counties  through 
which  a  river,  or  a  specified  portion  of  a  river,  or  any  tributary  thereof 
flows,  and  may  confer  on  such  committee  all  or  any  of  the  powers  of  a 
sanitary  authority  under  the  Elvers  Pollution  Act,  51  &  52  Yict.  c.  41, 
s.  14. 

As  stated  mpra,  the  power  of  instituting  proceedings  in  respect  of 
manufacturing  and  mining  pollutions  is  carefully  limited. 

Court. — The  Court  in  which  proceedings  in  respect  of  any  offence 
are  to  be  taken  is  the  County  Court.  It  may  by  summary  order  require 
any  person  to  abstain  from  the  commission  of  such  offence  or  to  perform 
a  duty  under  the  Act,  and  may  insert  in  any  order  such  conditions  as 
to  time  or  mode  of  action  as  it  may  think  just,  and  generally  give  direc- 
tions for  carrying  any  order  into  effect.  Any  person  making  default  in 
complying  with  any  requirement  of  an  order  may  be  ordered  to  pay  a 
sum  of  £50  for  every  day  during  which  he  is  in  default ;  and  where  he 
persists  in  disobeying  the  order,  the  Court  may  appoint  some  one  to 
carry  it  into  effect  at  his  expense  (s.  10). 

The  order  to  be  made  is  in  the  nature  of  an  injunction,  which,  like 
every  other  injunction,  is  a  matter  in  the  discretion  of  the  Court  before 
whom  it  comes.  The  County  Court  judge  should  not  grant  it  unless 
satisfied  that  he  ought  to  make  an  order,  and  that  he  can  make  one 
which  is  likely  to  work  beneficially  {Kirkheaton  Board  v.  Ainley,  [1892] 
2  Q.  B.  274;  Derbyshire  C.  G.  v.  Derly  Mayor,  [1896]  2  Q.  B.  297).  If 
either  party  in  any  proceedings  feels  aggrieved  by  the  decision  of  the 
County  Court  in  point  of  law  or  on  the  merits,  he  has  an  absolute  right 
of  appeal  (s.  11).  Written  notice  must  be  given  to  any  alleged  offender 
two  months  before  the  institution  of  proceedings  under  the  Act  (s.  13). 
See  also  Dkain,  Drainage  ;  Public  Health  ;  Water  Supply. 

Committees  for  protecting  particular  districts  in  Lancashire  and  in 
Yorkshire  were  formed  by  Provisional  Orders  in  1891.  These  committees 
subsequently  obtained  private  Acts  giving  them  increased  powers  to  deal 
with  pollutions  (see  55  &  56  Vict.  c.  cxci.  and  57  &  58  Vict.  c.  clxvi.). 
There  are  also  local  Acts  in  force  dealing  with  many  rivers. 

Road. — See  Highways. 

Robbery,— See  Larceny,  Vol.  VIIL  p.  59. 

Rogatory  Commissions.— See  Commissions,  Eogatory. 

Rogue. — See  Vagabond. 

Role  d' equipage. — The  register  of  a  ship's  crew. 

Roll. — A  list  or  register  of  names,  e.g.  a  burgess  roll,  or  of  legal 
proceedings,  e.g.  the  issue  and  other  rolls,  on  which  all  the  proceedings 
in  an  action  were  entered  (see  Issue  Roll  ;  Record),  or  the  Court 
rolls  of  a  manor  on  which  admissions,  surrenders,  etc.,  are  entered.  See 
Manor. 

Rolling  Stock. — As  to  exemption  from  distress  of  rolling 
stock  of  railway  companies,  see  article  Distress,  Vol.  IV.,  at  p.  635. 


30  EOLL'S  CHAPEL,  COURT,  AND  OFFICE 

Roll's  Chapel,  Court,  and  Office— What  was  known 

until  recently  as  the  Roll's  Chapel  in  Chancery  Lane  was  built  on  the 
site  of  an  ancient  religious  house  established  by  Henry  ill.,  known  as  the 
House  of  Maintenance  for  converted  Jews  (Domus  conversorum).  This 
religious  purpose  being  ultimately  abandoned,  the  establishment  was 
handed  over  by  Edward  ill.  in  1377  to  the  Master  of  the  Rolls  (q.v.),  to 
be  used  as  a  residence  and  Court ;  the  whole  being  within  the  parish  or 
peculiar,  called  the  Liberty  of  the  Rolls.  Roll's  House  was  the  official 
residence  of  the  Master.  The  Rolls  Court  was  held  there  until  the 
Master  became  a  judge  of  the  High  Court ;  and  on  the  completion  of 
the  Royal  Courts  of  Justice,  the  Court  ceased  to  be  used  as  such.  In 
the  office  of  the  Court,  and  in  the  chapel,  and  elsewhere  in  the  buildings, 
were  stored  rolls  and  records  of  the  Court  of  Chancery  from  the  reign 
of  Edward  III.  until  the  time  when  they  were  removed  to  the  present 
Public  Record  Office  (see  Recokd  Office). 

[Authorities. — Scargill  Bird,  Guide  to  the  Public  Records;  Wheatley 
and  Cunningham,  London  Past  and  Present,  vol.  iii.  p.  166.] 

Rolls  (Court). — The  Court  roll  of  a  manor,  wherein  the 
business  of  the  Court,  the  admissions,  surrenders,  names,  rents,  and 
services  of  the  tenants  are  copied  and  enrolled  (Toml.  Law  Diet.). 

The  lord  and  his  steward  are  compellable  by  mandamus  to  permit 
the  Court  rolls  to  be  inspected  by  any  person  claiming  an  interest 
under  them ;  and  this  is  the  proper  course  to  adopt  when  no  action  is 
pending  {B.  v.  Lucas,  1808,  10  East,  235 ;  10  R.  R.  283). 

The  practice  of  the  Court  upon  an  order  for  production  of  documents 
is,  that  the  Court  rolls  of  a  manor  are  merely  to  be  produced  for  inspec- 
tion, and  not  to  be  deposited  in  the  Court.  In  a  suit  between  copyholder 
and  lord,  if  the  usual  order  for  production  of  documents  is  made,  that 
order  will  extend  to  the  Court  rolls,  without  payment  to  the  steward  of 
the  customary  fees  {Hoare  v.  Wilson,  1867,  L.  R.  4  Eq.  1).  But  the  right 
to  the  inspection  of  them  is  confined  to  the  case  of  persons  interested 
{B.  V.  Shelley,  1789,  3  T.  R.  142).  As  the  Court  rolls  of  a  manor  are  not 
in  strictness  records,  so  they  must  be  proved,  where  their  authenticity  is 
questioned,  and  the  Courts  will  admit  an  averment  of  any  error  in  them 
{Bridger  v.  Huett,  1860,  2  F.  &  F.  35). 

Rolls,  Master  of  the. — See  Master  of  the  Rolls. 

Rolls  of  Parliament. — The  ancient  Rolls  of  Parliament 
now  deposited  at  the  Record  Office  {q.v.)  consist  of  three  classes  of 
records : — 

1.  The  Statute  Rolls. 

2.  Enrolments  of  Acts  of  Parliament,  commonly  termed  the  "  Parlia- 
ment Rolls." 

3.  The  Rolls  of  Parliament. 

1.  The  first  are  Records  of  Chancery  of  the  highest  authority,  on 
which  were  entered  the  several  statutes,  when  drawn  up  in  form,  for 
the  purpose  of  being  proclaimed  and  published.  These  statutes  were 
framed  upon  such  original  petitions  and  answers  or  entries  thereof  on 
the  Parliament  Rolls  as  related  to  public  concerns.  The  earliest  of  these 
Rolls  known  to  exist  commences  with  the  Statute  of  Gloucester,  6  Edw.  l, 
1278,  and  continues  up  to  the  eighth  year  of  Edw.  iv.  inclusive,  in  1468, 
with  an  interruption  of  sixteen  years  from  8  Hen.  vi.  to  23  Hen.  vi. 


EOLLS  OF  PAELIAMENT  31 

inclusive.  They  were  preserved  in  former  times  in  the  Tower  of  London. 
Though  the  Statute  Eolls  stop  with  Edw.  iv.,  there  is  said  to  be  evidence 
that  they  were  continued  subsequently ;  but  that  they  probably  ceased 
altogether  with  the  session  4  Hen.  vii.  (1489),  as  no  such  Eoll  of  a  later 
date  nor  any  evidence  thereof  has  been  discovered.  In  the  next  session 
of  7  Hen.  vii.,  public  Acts  were  for  the  first  time  printed  from  the  several 
bills  passed  in  Parliament,  and  not  as  part  of  one  general  statute  drawn 
up  in  the  ancient  form. 

2.  The  Enrolments,  or  the  Parliament  Eolls,  began  on  the  discon- 
tinuance of  the  Statute  Eolls,  and  constitute  an  uninterrupted  series 
from  1  Eich.  iii.  (1483)  down  to  the  present  time,  with  the  exception  of 
the  period  of  the  Commonwealth.  They  contained  some  other  matters 
{e.g.  commissions  for  giving  the  royal  assent  to  bills) ;  but  after  Hen.  vii. 
they  took  the  place  of  the  Statute  Eolls. 

The  private  Acts,  too,  were  enrolled,  but  were  gradually  dropped, 
until,  in  the  reign  of  Geo.  ii.,  even  the  titles  of  the  private  Acts, 
which  had  been  noticed,  were  omitted,  and  nothing  but  the  public  Acts 
were  enrolled. 

The  system  of  enrolment  until  1849  was  that  after  the  royal  assent 
to  the  Acts  of  a  session  had  been  given,  a  transcript  of  the  whole 
was  certified  by  the  Clerk  of  the  Parliaments,  and  deposited  in  the 
Eolls  Chapel.  A  Eoll,  or  Eolls,  was  engrossed  on  parchment,  signed 
and  certified  by  the  Clerk  of  the  Parliaments ;  and  it  thus  became  the 
enrolment  of  the  statutes  of  that  session  of  Parliament. 

In  1849,  the  engrossments  and  enrolments  ceased.  Since  then  two 
prints  on  vellum  of  every  Act — public,  local,  or  private — are  made. 
These  copies  are  certified  by  the  Clerk  of  the  Parliaments ;  and  one  of 
them  is  stored  in  the  Victoria  Tower,  the  other  being  sent  to  the  Eecord 
Office,  where  they  are  numbered  in  the  three  separate  and  different 
classes. 

The  original  Acts,  both  public  and  private,  are  kept  in  the  Parliament 
Office. 

At  the  Eecord  Office  are  also  such  private  Acts  of  Parliament  as  have 
been  certified  into  Chancery  from  the  reign  of  Hen.  viii.  to  Geo.  iii. 
inclusive. 

3.  The  third  class — the  Eolls  of  Parliament — which  are  in  the  Eecord 
Office,  are  prior  to  the  reign  of  Eich.  in.  (1483-1485),  and  contain  entries 
of  the  several  transactions  in  Parliament.  When  complete  they  include 
the  adjournments,  and  all  other  common  and  daily  occurrences  and 
proceedings,  from  the  opening  to  the  close  of  each  Parliament,  with  the 
several  petitions  or  bills,  the  answers  given  to  them  not  only  on  public 
matters  on  which  the  statute  was  afterwards  framed,  but  also  on  private 
concerns. 

In  some  few  instances  the  statute,  as  drawn  up  in  form,  is  entered 
on  the  Eoll;  but  in  general  the  petition  and  answer  only  are  found 
entered ;  and  in  such  case  the  entry  of  itself  furnishes  no  certain 
evidence  that  the  petition  and  answer  were  at  any  time  put  into  the 
form  of  a  statute. 

These  proceedings  are  thus  recorded  from  1278-1503  a.d.,  and  there 
is  an  interval  of  six  years  between  their  close  and  the  beginning  of  the 
Lords'  Journals  in  the  reign  of  Hen.  viii.  (1509),  and  of  forty-four  before 
the  commencement  of  the  Commons'  Journals  in  the  reign  of  Edw.  vi. 
(1547).  They  are  complete  up  to  the  present  time,  with  the  exception 
of  a  short  period  during  the  reign  of  Elizabeth. 


32 


EOLLS  OF  THE  EXCHEQUEE 


See  Evidence  ;  Eecords, 

[Authorities. — Introduction  to  Statutes  of  the  Realm;  May's  Parlia- 
mentary Practice,  11th  ed. ;  Ilbert's  Legislative  Methods  and  Forms; 
Clifford's  Private  Bill  Legislation.'] 

Rolls  of  the  Exchequer.— The  Eolls  of  the  Exchequer, 
now  placed  in  the  Eecord  Office  {q.v.)  under  the  charge  and  superintend- 
ence of  the  Master  of  the  Eolls  {q.v.),  consist  of  the  records  of  that 
Court,  both  on  its  administrative  and  judicial  sides.  They  relate  to  the 
Exchequer  of  Pleas,  or  Common  Law  side ;  to  the  King's  Eemembrancer's 
Department,  or  Equity  side ;  to  the  Lord  Treasurer's  Eemembrancer's 
Department,  including  the  office  of  the  Clerk  of  the  Pipe;  to  the 
Augmentation  Department,  including  the  old  Courts  of  Augmentations 
and  General  Surveyors  of  the  King's  lands ;  to  the  Firstfruits  and  Tenths 
Departments ;  to  the  Eeceipt  Department,  or  "  Exchequer  of  Eeceipt " 
(including  the  Pells'  and  Auditors'  offices);  to  the  Treasury  of  the 
Exchequer,  or  Treasury  of  the  Eeceipt  of  the  Exchequer;  and  to  the 
Land  Eevenue  Department. 

[Authority. — Scargill  Bird,  Guide  to  the  Public  Becords.] 

Roman  Catholic. 


TABLE  OF  CONTENTS. 


Eecusancy      .... 

Relief  Acts    .... 

Existing  Disabilities 

The  Crown 

Certain  high  Offices  of  State 

Ecclesiastical     Patronage 

Established  Church 
Offices  in  Established  Church 

etc 

Ecclesiastical  Titles 
Religious  Orders  . 
Ecclesiastics  generally     . 


32 

32 

33 

33 
33 

34 

34 
35 
35 
36 


Places  of  Worship 

Marriages  and  Burials 

Paupers  . 

Criminals 

Lunatics 

Schools  . 

Religious  Education  of  Infants 

Trusts  and  Bequests 


36 
37 
37 
37 
38 
38 
38 
39 

1791, 


The  term  Eoman  Catholic  was  first  used  in  the  Eelief  Act  of 
31  Geo.  III.  c.  32,  as  the  legal  expression  to  designate  persons  in  religious 
communion  with  the  See  of  Eome.  Prior  to  that  Act  such  persons  were 
described  in  the  various  statutes  dealing  with  them  from  the  reign 
of  Queen  Elizabeth  onwards,  as  papists,  papishes,  popish  recusants,  or 
popish  recusants  convict.  A  popish  recusant  was  a  papist  who  refused 
to  attend  the  system  of  public  worship  set  up  under  the  Act  of  Uni- 
formity, 1  Eliz.  c.  2,  and  a  popish  recusant  convict  was  a  papist  legally 
convicted  of  such  refusal,  whereby  he  was  rendered  liable  to  certain 
special  penalties.  Eor  the  learning  on  the  subjects  of  recusancy  and 
spiritual  treason,  the  curious  in  such  matters  may  be  referred  to  Cawley's 
Law  of  Becusants  {l^^Q);  to  Gibson's  Codex  Juris  Anglicani,  where  the 
statutes  of  recusancy  will  be  found  collected,  with  some  notes  illustrative 
of  their  administration ;  and  to  Anstey's  Guide  to  the  Law  affecting  Boman 
Catholics  (1842). 

Eelief  Acts. 

The  first  Eelief  Act,  relieving  papists  taking  a  prescribed  oath  from 
the  more  stringent  provisions  of  the  penal  laws  as  to  the  apprehension 


EOMAN  CATHOLIC  33 

of  popish  priests  and  Jesuits,  the  punishment  of  perpetual  imprisonment 
for  keeping  a  school,  and  the  disabilities  as  to  holding  real  property,  was 
that  of  1778,  18  Geo.  iii.  c.  60.  The  Koman  Catholic  Belief  Act  of  1791, 
31  Geo.  III.  c.  32,  went  further,  and  relieved  Koman  Catholics  taking 
the  prescribed  oath  from  all  liability  to  prosecution  for  the  exercise 
of  their  religion,  and  from  the  disability  to  practise  the  professions  of 
counsellor-at-law,  barrister,  attorney,  solicitor,  and  notary. 

The  Emancipation  Act  of  1829,  10  Geo.  iv.  c.  7,  extended  to  Eoman 
Catholics  the  right  to  sit  and  vote  in  Parliament,  the  right  to  vote 
in  parliamentary  elections,  and  the  right  to  hold  all  civil  and  military 
offices  under  the  Crown,  and  exercise  any  other  franchise  or  civil  right 
with  certain  exceptions  mentioned  below,  but  always  conditionally  upon 
their  taking  the  form  of  oath  prescribed  by  the  Act.  In  theory,  at 
least,  Eoman  Catholics  who  abstained  from  taking  the  special  oath 
provided  for  their  benefit,  remained  subject  to  the  penalties  of  recusancy 
till  the  year  1846,  when  such  penalties  were  repealed  by  the  Act  9  &  10 
Vict.  c.  59.  In  1867,  a  short  uniform  oath  for  all  subjects  of  the  Crown 
was  substituted  by  30  &  31  Vict.  c.  75,  s.  5,  and  in  the  following  year 
the  present  uniform  oaths  were  settled  by  31  &  32  Vict.  c.  72.  finally, 
in  1871,  the  provisions  as  to  the  Eoman  Catholic  oath  were  expressly 
repealed  by  33  &  34  Vict.  c.  48. 

Existing  Disabilities. 

The  Eelief  Acts  have  left  certain  special  disabilities  affecting — 
(A)  Eoman  Catholics  in  general,  (B)  the  clergy  and  religious  orders. 

(A)  (1)  The  CrowTi.— Under  the  Bill  of  Eights,  1  Will.  &  Mary,  sess.  2, 
0.  2,  and  the  Act  of  Settlement,  12  &  13  Will.  ill.  c.  2,  s.  2,  every  person 
professing  the  popish  religion  or  marrying  a  papist,  is  excluded  from 
inheriting  or  possessing  the  Crown. 

(2)  Certain  high  Offices  of  State. — Under  10  Geo.  iv.  c.  7,  s.  12,  it 
is  provided  that  nothing  in  the  Act  is  to  enable  any  person  professing 
the  Eoman  Catholic  religion  to  be  capable  of  holding  the  office  of  guardians 
and  justices  of  the  United  Kingdom,  or  of  regent  of  the  United  Kingdom, 
under  whatever  name,  style,  or  title  such  office  may  be  constituted. 
The  section  continues  as  follows : — "  Nor  to  enable  any  person  otherwise 
than  he  is  now  by  law  enabled,  to  hold  or  enjoy  the  office  of  Lord  High 
Chancellor,  Lord  Keeper,  Lord  Commissioner  of  the  Great  Seal  of  Great 
Britain  and  Ireland,  or  the  office  of  Lord  Lieutenant  of  Ireland,  or  His 
Majesty's  High  Commissioner  to  the  General  Assembly  of  the  Church 
of  Scotland."  The  office  of  Lord  Chancellor  of  Ireland  was  expressly 
thrown  open  to  all  the  Queen's  subjects  by  Act  of  1867,  30  &  31  Vict. 
c.  75.  Doubts  have  arisen  as  to  whether  /Eoman  Catholics  are  now 
legally  capable  of  holding  the  offices  of  Lord  Chancellor  of  England  and 
Lord  Lieutenant  of  Ireland.  It  is  only  possible  here  to  indicate  what 
is  believed  on  the  strength  of  eminent  authority  to  be  a  correct  view 
of  this  question.  Prior  to  the  Emancipation  Act,  Eoman  Catholics  were 
excluded  from  all  important  offices  by  the  existence  of  certain  tests, 
namely,  the  oaths  of  allegiance,  abjuration,  and  supremacy,  and  the 
declaration  against  transubstantiation.  The  Emancipation  Act  substituted 
for  these  tests  a  modified  form  of  oath  to  be  taken  by  Eoman  Catholics 
in  the  case  of  public  offices  generally,  but  expressly  reserved  the  old  tests 
as  regards  the  high  offices  in  question.  In  1858,  as  before  mentioned, 
the  oaths  of  allegiance,  etc.,  were  consolidated  into  one  form  of  oath 
VOL.  xin.  3 


34  KOMAN  CATHOLIC 

by  21  &  22  Vict.  c.  48 ;  but  as  the  new  oath  retained  the  declaration 
that  no  foreign  prince  or  prelate  had  or  ought  to  have  any  jurisdiction, 
ecclesiastical  or  spiritual,  within  the  realm,  it  was  one  which  persons 
professing  the  Koman  Catholic  religion  could  not  conscientiously  take. 
In  1868,  however,  by  31  &  32  Vict.  c.  72,  there  was  substituted  the 
present  form  of  oath,  to  which  no  Eoman  Catholic  can  object.  So  far, 
therefore,  as  the  oath  is  concerned,  there  is  clearly  no  longer  any  obstacle 
to  the  tenure  of  these  offices  by  Roman  Catholics.  In  1867,  an  Act 
(30  &  31  Vict.  c.  62)  was  passed,  entitled  "  an  Act  to  abolish  a  certain 
declaration,  commonly  called  the  Declaration  against  Transubstantiation, 
the  Invocation  of  the  Saints,  and  the  sacrifice  of  the  Mass,  as  practised 
in  the  Church  of  Eome,  and  to  render  it  unnecessary  to  take,  make,  or 
subscribe  the  same  as  a  qualification  for  the  exercise  or  enjoyment  of 
any  civil  office,  franchise,  or  right."  This  Act  consisted  of  two  clauses, 
whereof  the  first  repealed  such  parts  of  certain  Acts  as  required  the  said 
declaration  to  be  taken,  and  provided  that  it  should  not  be  obligatory 
for  any  person  to  take  the  said  declaration  as  a  qualification  for  any 
office,  and  the  second  enacted  as  follows : — "  Nothing  in  this  Act  con- 
tained shall  be  construed  to  enable  any  person  professing  the  Roman 
Catholic  religion  to  exercise  or  enjoy  any  civil  office,  franchise,  or  right, 
for  the  exercise  or  enjoyment  of  which,  making,  taking,  or  subscribing 
the  declaration  by  this  Act  abolished,  is  now  by  law  a  necessary  qualifi- 
cation, or  any  other  civil  office,  franchise,  or  right,  from  which  he  is  now 
by  law  excluded."  Thus  the  effect  of  the  Act  would  appear  to  be  that 
whilst  it  abolished  the  declaration  as  regards  Peotestants,  it  expressly 
retained  it  as  against  Roman  Catholics.  This  is  the  view  taken  by  Sir 
John  (afterwards  Lord)  Coleridge  in  an  elaborate  opinion  delivered  by 
him  as  Attorney-General  in  answer  to  a  question  in  the  House  of 
Commons  {Hansard's  Debates,  vol.  211,  3rd  Series,  pp.  280-283,  May  6, 
1872,  H.  C).  On  this  view,  Roman  Catholics  remained  legally  excluded 
from  the  reserved  offices  till  the  passing  of  the  Promissory  Oaths  Act, 
1871,  34  &  35  Vict.  c.  48.  This  Act  repealed  without  reservation  the 
last  remaining  statutes  imposing  the  declaration,  and  so,  in  Sir  John 
Coleridge's  opinion,  removed  the  last  legal  obstacle  to  the  eligibility  of 
Roman  Catholics  for  the  offices  in  question.  Notwithstanding  this 
weighty  official  opinion,  however,  a  Bill  for  getting  rid  of  doubts  and 
removing  the  supposed  disability  was  introduced  in  the  House  of 
Commons  in  1891,  but  the  second  reading  was  rejected  by  256  to  223 
votes.  For  a  full  discussion  of  this  topic,  see  A  Manual  of  the  Law 
affecting  Catholics,  by  W.  S.  Lilly  and  J.  P.  Wallis,  pp.  36-43. 

(3)  Ecclesiastical  Patronxige  of  the  Established  Church. — A  Roman 
Catholic  may  be  the  legal  patron  of  a  benefice  of  the  Established  Church, 
and  as  such  may  sell  the  advowson  or  the  next  presentation ;  but  he 
may  not  himself  present  or  nominate.  This  disability  is  derived  from 
3  Jac.  I.  c.  5,  ss.  18-25,  and  1  Will.  &  Mary,  c.  26  (an  Act  to  vest  in 
the  two  universities  the  presentation  of  benefices  belonging  to  papists). 
By  13  Anne,  c.  13,  "every  papist  or  person  making  profession  of  the 
popish  religion,  and  every  mortgagee,  trustee,  or  person  any  ways 
entrusted  by  or  for  such  papist,"  is  declared  "incapable  to  present, 
collate,  or  nominate  to  any  benefice,  prebend,  or  ecclesiastical  living, 
school,  hospital,  or  donative,"  and  every  such  presentation,  etc.,  was 
declared  to  be  void  (cp.  Boyer  v.  Bishop  of  Norwich,  [1892]  P.  41 ;  [1892] 
A.  C.  417).  And  by  11  Geo.  ii.  c.  17,  it  was  further  enacted  that  "  all 
grants  made  by  any  papist,  or  by  any  mortgagee  or  trustee  on  his 


ROMAN  CATHOLIC  35 

behalf,  secret  or  avowed,  etc.,"  should  be  void,  "  excepting  all  hond-fide 
grants  for  a  full  and  valuable  consideration  to  Protestant  purchasers, 
and  only  for  the  benefit  of  such  purchaser." 

The  Roman  Catholic  Emancipation  Act,  1829,  added  certain  further 
provisions  with  regard  to  ecclesiastical  patronage.  Sec.  15  provides  that 
nothing  in  the  Act  shall  authorise  any  Roman  Catholic  being  a  member 
of  any  lay  body  corporate  to  give  any  vote  at,  or  in  any  manner  join 
in,  the  election,  presentation,  or  appointment  of  any  person  to  any 
ecclesiastical  benefice,  or  any  office  or  place  in  the  United  Church  of 
England  and  Ireland.  Sec.  17  provides  that  where  the  right  of  pre- 
sentation to  any  benefice  belongs  to  an  office  in  the  gift  of  the  Crown, 
and  the  holder  is  a  Roman  Catholic,  the  right  of  presentation  for  the 
time  being  shall  devolve  upon  the  Archbishop  of  Canterbury.  How- 
ever, when  in  1886  a  Roman  Catholic,  Mr.  Matthews,  was  appointed 
Home  Secretary,  it  was  arranged  that  during  his  tenure  the  ecclesiastical 
patronage  of  the  office  should  be  exercised  by  the  First  Lord  of  the 
Treasury.  Sec.  18  makes  it  a  high  misdemeanor,  punishable  by  per- 
petual disability  to  hold  office,  for  any  Roman  Catholic  to  advise  the 
Crown  concerning  ecclesiastical  patronage. 

(4)  Offices  in  Established  Church,  etc. — Under  sec.  16,  Roman  Catholics 
are  debarred  from  holding  any  office  in  the  United  Churches  of  England 
and  Ireland,  or  the  Church  of  Scotland ;  in  the  ecclesiastical  Courts  of 
judicature,  or  any  Court  of  Appeal  therefrom;  in  any  Cathedral  or 
collegiate  or  ecclesiastical  establishment  or  foundation ;  in  any  of  the 
universities  of  the  realm ;  or  in  the  colleges  of  Eton,  Westminster,  or 
Winchester,  or  any  college  or  school  within  the  realm.  With  reference 
to  the  words  italicised,  so  much  of  the  Act  as  relates  to  any  of  the 
universities  of  Oxford,  Cambridge,  and  Durham,  or  any  college  therein, 
is  repealed  by  34  &  35  Vict.  c.  26,  s.  8. 

A  Roman  Catholic  may  be  appointed  a  churchwarden,  but  may 
execute  the  office  by  deputy  (Roman  Catholic  Relief  Act,  1791,  31 
Geo.  III.  c.  32,  s.  7).    As  to  priests,  see  post ;  cp.  article  Churchwarden. 

(5)  Ecclesiastical  Titles. — Sec.  24  of  the  Roman  Catholic  Emancipa- 
tion Act  imposes  a  penalty  upon  any  person  other  than  the  person 
authorised  by  law,  who  shall  assume  the  title  of  any  archbishop,  bishop, 
or  dean  in  England  or  Ireland.  The  establishment  by  papal  authority 
in  1850  of  a  Roman  Catholic  hierarchy  for  England  with  territorial 
titles,  occasioned  the  passing  of  the  Ecclesiastical  Titles  Act,  1851,  14 
&  15  Vict.  c.  50,  whereby  the  assumption  of  such  titles  was  forbidden 
under  heavy  penalties ;  but  the  Act  was  never  actually  put  in  force, 
and  was  repealed  in  1871  by  34  &  35  Vict.  c.  53. 

(B)  (6)  Religious  Orders  of  Men. — Members  of  religious  orders  of 
men  had  been  entitled  to  avail  themselves  of  the  protection  affi^rded  by 
the  Relief  Act  of  1791,  on  the  same  terms  as  other  Roman  Catholic 
subjects,  but  by  the  Roman  Catholic  Emancipation  Act,  1829,  they  were 
subjected  to  new  and  special  disabilities.  The  Act  contains  (ss.  28-36) 
a  series  of  provisions  "  for  the  gradual  suppression  and  final  prohibition  " 
of  "  Jesuits  and  members  of  other  religious  orders  or  societies  of  the 
Church  of  Rome,  bound  by  monastic  or  religious  vows  "  (s.  28),  including, 
under  various  pains  and  penalties,  provision  for  the  registration  of  all 
Jesuits  and  other  male  regulars  (s.  28) ;  prohibition  against  any  Jesuit 
or  other  male  regular  coming  into  the  kingdom  (s.  29) ;  provision  for 
the  granting  of  licences  to  such  persons  by  the  Secretary  of  State  for 
periods  of  not  more  than  six  months  (s.  31) ;  and  provisions  against  the 


36  EOMAN  CATHOLIC 

admission  of  a  new  member  of  any  order  (ss.  33,  44).  [Sec.  34  provides- 
that  any  person  who,  after  the  commencement  of  the  Act,  is  admitted 
or  becomes  a  Jesuit  or  brother  or  member  of  any  other  such  religious- 
order,  community  or  society,  is  to  be  deemed  to  be  guilty  of  mis- 
demeanor, and  on  conviction  is  to  be  ordered  to  be  banished  from  the 
United  Kingdom  for  the  term  of  his  natural  life.  As  to  this  section, 
see  B.  V.  Kennedy,  infra.]  Sec.  37  provides  that  nothing  in  the  Act 
shall  be  construed  to  extend  to  any  religious  order,  community,  or 
establishment  consisting  of  females  bound  by  religious  or  monastic 
vows.  Lastly,  sec.  38  enacts  that  all  penalties  imposed  by  the  Act  are 
to  be  recovered  as  a  debt  due  to  His  Majesty  by  information  to  be  tiled 
in  the  name  of  the  Attorney-General.  [In  1902  an  attempt  was  made,, 
but  unsuccessfully,  to  put  in  force  these  penal  provisions  (see  B.  v. 
Kennedy,  1902,  86  L.  T.  753).  In  that  case  it  was  held,  upon  a  rule  nisi 
for  a  mandamus  directed  to  a  Metropolitan  police  magistrate,  requiring 
him  to  hear  and  determine  an  application  for  a  summons  for  an  offence 
under  sec.  34  of  the  Act  of  1829,  that,  though  the  information  disclosed 
a  primd  facie  case  that  an  offence  had  been  committed,  the  magistrate  was 
entitled,  in  the  exercise  of  his  discretion,  to  refuse  to  issue  a  summons, 
and  that  the  Court  had  no  jurisdiction  to  compel  him  to  review  his 
decision  unless  the  discretion  was  exercised  on  improper  and  extraneous 
grounds.  It  was  further  held  that  the  fact  that  there  never  had  been 
any  prosecutions  under  the  section,  and  that  the  magistrate  was  of 
opinion  that  if  any  prosecutions  under  it  were  now  to  be  commenced 
they  should  be  initiated  by  the  Crown,  were  not  improper  or  extraneous 
grounds  in  considering  an  application  by  a  private  person  for  a  summons 
under  the  section.  It  was  laid  down,  however,  that  there  is  nothing 
in  the  Act  to  prevent  private  persons  initiating  proceedings  under 
sec.  34.] 

(7)  Ecclesiastics  generally. — Persons  in  holy  orders  of  the  Church  of 
Eome  cannot  be  members  of  the  House  of  Commons  (Eoman  Catholic 
Emancipation  Act,  s.  9),  a  disability  which  is  shared  by  clergymen  of 
the  Established  Church.  By  sec.  26  of  the  same  Act,  Eoman  Catholic 
ecclesiastics  are  forbidden  to  exercise  any  of  the  rites  or  ceremonies  of 
their  religion,  or  wear  the  habits  of  their  order,  save  within  the  usual 
places  of  worship  of  the  Eoman  Catholic  religion,  or  in  private  houses, 
under  a  penalty  of  £50;  but  this,  of  course,  like  the  other  penalties 
before  referred  to,  can  only  be  recovered  at  the  instance  of  the  Attorney- 
General.  On  the  other  hand,  ministers  of  any  Eoman  Catholic  con- 
gregation are  exempt  from  serving  on  juries,  or  from  being  "  chosen  or 
appointed  to  bear  the  office  of  churchwarden,  overseer  of  the  poor,  or 
any  other  parochial  or  ward  office,  or  other  office  in  any  hundred  of  any 
shire,  city,  town,  parish,  division,  or  wapentake  "  (31  Geo.  III.  c.  32,  s.  8). 

Places  of  Woeship. 

The  Eoman  Catholic  Eelief  Act,  1791,  31  Geo  iii.  c.  32,  s.  5,  required 
Eoman  Catholic  places  of  worship  to  be  registered  at  Quarter  Sessions,. 
but  in  1832  the  2  &  3  Will.  iv.  c.  115  placed  Eoman  Catholics  in  this 
respect  on  the  same  footing  as  the  Protestant  dissenters  in  England 
then  were.  This  brought  Eoman  Catholics  within  the  scope  of  52 
Geo.  III.  c.  155,  which  required  dissenting  places  of  worship  to  be- 
certified  to  the  bishop,  archdeacon,  and  Quarter  Sessions.  In  1852^ 
14  «&;  15  Vict.  c.  36,  applying  only  to  Protestant  dissenters,  permitted 


EOMAN  CATHOLIC  37 

registration  by  the  registrar  of  births,  deaths,  and  marriages;  and  in 
1855  this  Act  was  repealed  by  18  &  19  Vict.  c.  81,  which  provides  that 
€very  place  of  meeting  for  religious  worship  of  Protestant  dissenters 
and  persons  professing  the  Eoman  Catholic  religion,  may  be  certified  in 
writing  to  the  registrar  of  births,  deaths,  and  marriages.  This  Act 
left  the  compulsory  registration  of  Eoman  Catholic  places  of  worship 
untouched ;  but  by  a  subsequent  Act  of  the  same  session  (c.  86)  it  was 
enacted  that  the  provisions  before  mentioned  of  2  &  3  Will.  iv.  c.  115, 
should  "  be  read  as  applicable  to  the  laws  to  which,  Protestant  dissenters 
in  England  are  liable  for  the  time  being  after  the  passing  of  this 
Act." 

Marriages  and  Burials. 

Practically  the  chief  necessity  for  the  registration  of  places  of 
worship  lies  in  the  circumstance  that  marriages  can  only  be  solemnised 
in  places  of  worship  registered  in  accordance  with  the  requirements 
of  18  &  19  Vict.  c.  81,  and  6  &  7  Will.  iv.  c.  85,  relating  to  the 
solemnisation  of  marriages  in  places  of  worship  other  than  those 
belonging  to  the  Church  of  England.  The  law  as  to  the  solemnisa- 
tion of  marriages  is  the  same  for  Eoman  Catholics  as  for  Protestant 
dissenters  (see  Nonconformist).  So  also  as  to  Burials;  but  as  to 
the  subject  of  mortuary  inscriptions  asking  for  prayers  for  the  dead, 
see  article  Prayers  for  the  Dead. 

Paupers. 

There  are  no  provisions  in  the  Poor  Law  special  to  Koman  Catholics, 
whose  rights  with  respect  to  the  creed  register,  religious  instruction  and 
ministration,  and  the  establishment  of  Certified  Poor  Law  Schools,  stand 
upon  precisely  the  same  footing  as  those  of  other  religious  persuasions 
(see  article  Poor  Law).  One  or  two  points  may  here  be  noted  for  the 
sake  of  convenience.  (1)  As  effecting  the  practical  utility  of  registering 
Eoman  Catholic  places  of  worship,  it  is  to  be  observed  that  ministers 
of  registered  places  of  worship  may  inspect  the  creed  register  and  visit 
and  instruct  the  inmates  of  a  workhouse.  Under  the  Poor  Law  General 
Order,  July  24,  1847,  art.  122,  any  "licensed  minister"  may  visit  and 
instruct ;  and  the  term  "  licensed  minister "  is  construed  to  include 
Eoman  Catholic  priest  (Glen's  Poor  Laio  Orders,  11th  ed.,  p.  320), 
(31  &  32  Vict.  c.  122,  ss.  19  and  20).  (2)  The  guardians  may  properly 
appoint  a  Eoman  Catholic  priest  as  a  salaried  religious  instructor 
{R.  V.  Easlehurst,  1884,  13  Q.  B.  D.  253).  (3)  Liberty  for  such  an 
instructor  to  distribute  religious  books  to  the  inmates  under  his 
spiritual  care  is  dependent  upon  arrangement  with  the  guardians 
(see  R.  V.  The  GuardiaTis  of  St.  Luke's,  Chelsea,  1861,  at  p.  320  of 
Glen's  Poor  Law  Orders,  11th  ed. ;  A  Manual  of  the  Law  affecting 
Catholics,  by  Lilly  and  Wallis,  pp.  88-101). 

Criminals. 

Eoman  Catholic  ministers  to  prisons  are  appointed  by  the  Home 
Secretary.  The  religious  rights  of  Eoman  Catholic  and  other  prisoners 
differing  from  the  Established  Church  are  secured  by  the  Prison 
Ministers  Act,  1863,  26  &  27  Vict.  c.  79,  and  Prisons  Act,  1865, 
28  &  29  Vict.  c.  126,  Sched.  I.  Eegulations  47,  48.    With  regard  to 


38  KOMAN  CATHOLIC 

youthful   offenders   and    the   establishment   of   certified   reformatory- 
schools,  see  Eefokmatory. 

Lunatics. 

Under  the  Lunacy  Act,  1890,  53  &  54  Vict.  c.  5,  s.  276,  the  committee 
of  a  county  lunatic  asylum  may  appoint  and  remunerate  a  minister  of  any 
religion  to  attend  the  patients  of  the  religious  persuasion  to  which  the 
minister  belongs. 

Schools. 

The  rights  of  Eoman  Catholics  with  regard  to  religious  education 
in  schools  supported  out  of  public  funds  are  precisely  the  same  as 
those  of  other  persuasions,  and  call  for  no  special  comment  (see  arts. 
Education;  Industrial  School;  Eefoematory).  For  a  model  trust- 
deed  for  a  Eoman  Catholic  elementary  school,  see  Lilly  and  Wallis, 
op.  ait.  p.  230. 

Eeligious  Education  of  Infants. 

Questions  affecting  the  religious  education  of  infants  are  frequently 
of  special  interest  as  between  Eoman  Catholics  and  Protestants,  but  the 
law  being  absolutely  impartial  and  having  no  regard  to  religious  interests 
as  such,  is  not  appropriate  for  discussion  here  (see  art.  Infants). 

A  word  may  be  said  as  to  the  legal  bearing  of  the  antenuptial 
agreements  to  educate  children  in  the  Eoman  Catholic  faith  which 
are  of  common  occurrence  in  the  case  of  marriages  between  Eoman 
Catholics  and  Protestants.  Such  agreements  are  not  binding  as  legal 
contracts,  but  an  antenuptial  agreement  in  favour  of  the  mother's 
religion  may  have  weight  in  considering  whether  there  has  been 
waiver  or  abandonment  of  the  father's  right  to  have  his  child  educated 
in  his  own  religion  (Andrews  v.  Salt,  1873,  L.  E.  8  Ch.  622;  and  see 
Lilly  and  "Wallis,  op.  cit.  chap.  iv.). 

Trusts  and  Bequests. 

Prior  to  the  Eoman  Catholic  Eelief  Act,  1791,  all  trusts  and  bequests 
for  Eoman  Catholic  religious  uses  were  void  in  consequence  of  the 
illegality  of  the  Eoman  Catholic  religion;  and  by  sec.  17  of  that  Act 
it  was  expressly  provided  that  whatever  uses  and  trusts  were  theretofore 
deemed  superstitious  or  unlawful,  should  continue  to  be  so  deemed. 
The  Eoman  Catholic  Emancipation  Act,  1829,  was  silent  on  the  subject ; 
so,  to  remove  doubts,  in  1832  the  Eoman  Catholic  Charities  Act,  2  &  3 
Will.  IV.  c.  115,  was  passed,  whereby  it  was  enacted  that  His  Majesty's 
subjects  professing  the  Eoman  Catholic  religion,  in  respect  of  their 
schools,  places  of  religious  worship,  education,  and  charitable  purposes 
in  Great  Britain,  and  the  property  held  therewith,  and  the  persons 
employed  in  or  about  the  same,  should  in  respect  thereof  be  subject 
to  the  same  laws  as  the  Protestant  dissenters  are  subject  to  in  England 
in  respect  to  their  schools  and  places  for  religious  worship,  education, 
and  charitable  purposes,  and  not  further  or  otherwise.  Trusts  and 
bequests  for  the  religious  purposes  of  Protestant  dissenters  have  been 
lawful  since  the  Toleration  Act,  1688.  The  effect  of  2  &  3  Will.  iv. 
c.  15  is  to  legalise  the  same  kind  of  trusts  for  the  religious  purposes 
of  Eoman  Catholics,  but  not  to  validate  certain  other  kinds  of  trusts, 


EOMAN  CATHOLIC  39 

to  be  presently  noticed,  which  are  connected  with  the  tenets  and 
practices  of  Roman  Catholicism,  and  which  are  void  on  some  special 
ground  of  law.  Roman  Catholic  charities  were  temporarily  exempted 
from  the  Charitable  Trusts  Act,  1853,  16  &  17  Vict.  c.  137,  s.  62,  and 
the  exemption  was  continued  by  the  Charitable  Trusts  Amendment  Act, 
1855,  18  &  19  Vict.  c.  124,  s.  47,  and  by  19  &  20  Vict.  c.  76,  20  &  21 
Vict.  c.  76,*  and  21  &  22  Vict.  c.  51,  to  September  1,  1859,  after  which 
date  Roman  Catholic  charities  became  subject  to  the  Charitable  Trusts 
Acts.  The  Roman  Catholic  Charities  Act,  1860,  23  &  24  Vict.  c.  134, 
8.  1,  provides  that  Roman  Catholic  charities  for  lawful  purposes  are  not 
to  be  invalidated  by  the  addition  of  an  unlawful  trust,  but  that  the 
property  may  be  apportioned  and  the  whole  applied  cy-'prh  to  lawful 
Roman  Catholic  purposes  by  order  of  the  Court  or  the  Board  of 
Charity  Commissioners  for  England  and  Wales.  But  the  section  does 
not  of  course  apply  where  the  fund  is  wholly  dedicated  to  unlawful 
purposes  and  no  legal  charitable  intent  is  disclosed  {In  re  BlundelVs 
Trusts,  30  Beav.  360). 

Roman  Catholic  trusts  and  bequests  may  be  invalidated  as  being — 
(a)  superstitious ;  (&)  otherwise  prohibited  by  law ;  (c)  lawful  but  not 
charitable  in  the  legal  meaning  of  the  term,  and  therefore  within  the 
law  against  perpetuities. 

(a)  The  doctrine  of  Superstitious  Uses  is  dealt  with  in  separate 
articles  (see  Charities  ;  Prayers  for  the  Dead  ;  Superstitious  Uses). 
It  may  suffice  here  to  refer  to  the  leading  case  of  West  v.  ShuttlewortJi, 
1835,  2  Myl.  &  K.  684,  which  decided  that  in  view  of  the  Statute  of 
Chantries,  1  Edw.  vi.  c.  14,  dispositions  of  property  to  secure  prayers 
and  masses  for  the  dead  are  void,  notwithstanding  the  general  valida- 
tion of  Roman  Catholic  trusts  and  bequests  by  2  &  3  Will.  iv.  c.  115. 
But  such  a  disposition  as  a  bequest  to  a  priest  for  the  support  of  public 
worship  would  not  be  invalidated  by  the  addition  of  a  request  expressly 
stated  not  to  constitute  a  trust  or  legal  obligation,  that  mass  may  be 
offered  for  the  testator  or  any  other  deceased  person.  The  principle  is 
that  of  Bawbotham  v.  Dunnett,  1878,  8  Ch.  D.  430. 

(b)  Trusts  and  bequests  for  the  collective  benefit  of  religious  orders 
of  men  in  the  Church  of  Rome  bound  by  monastic  or  religious  vows, 
are  void  by  reason  of  the  illegality  of  such  orders  under  the  Roman 
Catholic  Emancipation  Act,  above  noticed.  But  it  must  be  remembered 
that  the  disability  does  not  apply  to  communities  of  secular  priests  not 
bound  by  vows,  such  as  Oratorians,  Oblates  of  St.  Charles,  etc.  On  the 
other  hand,  a  direct  bequest  to  an  individual  member  or  individual 
members  of  a  forbidden  order  is  good  as  a  private  gift ;  for  the  ancient 
doctrine  that  a  person  who  has  taken  religious  vows  is  civiliter  mortuics 
no  longer  applies,  and  there  is  nothing  to  prevent  the  individual  monk 
holding  property  and  disposing  of  it  in  any  way  he  pleases.  It  seems, 
too,  that  a  bequest  to  an  order  upon  trust  to  apply  the  fund  for  good 
charitable  purposes  would  not  fail  on  account  of  the  trustee's  disability. 
In  the  Irish  case  of  Carbery  v.  Cox,  1852,  3  Ir.  Ch.  231,  a  bequest  of  £20 

a  year  to  the  monks  of  S to  provide  clothes  for  the  poor  children 

attending  their  school  was  held  a  good  charitable  trust,  during  the  lives 

of  the  monks  at  S at  the  time  of  the  testator's  death,  and  the 

survivors,  the  fund  afterwards  to  be  applied  cy-jpr^s,  under  a  scheme 
to  be  settled  subsequently ;  but  a  bequest  of  £20  a  year  after  the  death 
of  M.  C.  to  the  monks  of  Mount  Melleray  for  their  chapel,  was  held 
bad  on  the  ground  that  the  abbot  died  before  M.  C,  and  that  the 


40  EOMAN  DUTCH  LAW 

Court  could  not  recognise  his  successor  or  discover  any  general  charitable 
purpose. 

In  Hogan  v.  Byrne,  1862,  13  Ir.  R  C.  L.  166,  a  devise  and  bequest 
to  the  Christian  Brothers  "  to  pay  their  rent "  was  held  to  be  a  bequest 
to  the  order  and  not  to  the  individual  monks,  and  therefore  bad. 

In  Kelioe  v.  Wilson,  1880,  L.  E.  Ir.  7  Ch.  10,  bequests  to  the 
superiors  for  the  time  being  of  three  religious  orders  in  Dublin,  to  be 
applied  in  building  or  repairing  and  maintaining  churches,  was  held 
to  be  bad,  on  the  ground  that  the  intended  beneficiaries  were  not  the 
public  coming  to  worship  in  the  churches,  but  the  monks,  who  would 
otherwise  have  had  to  provide  the  money  for  the  works  out  of  their 
own  funds.  This  reasoning,  as  pointed  out  by  Lilly  and  Wallis,  op.  cit. 
p.  146,  seems  open  to  objection ;  especially  in  the  case,  common  in  the 
Eoman  Catholic  communion  in  this  country,  of  a  religious  order  intrusted 
by  the  recognised  Eoman  Catholic  ecclesiastical  authority  with  the  care 
of  a  "mission,"  i.e.  with  the  duty  of  providing  religious  ministrations 
and  public  worship  for  the  benefit  of  Eoman  Catholics  residing  within 
a  certain  area. 

In  these  circumstances  a  testator  wishing  to  benefit  a  forbidden 
order  may  either  adopt  the  simple  expedient  of  an  immediate  gift  to 
an  individual  member ;  or  he  may  resort  to  the  more  elaborate  device 
recommended  in  Elphinstone's  Introduction  to  Conveyancing,  6  th  ed,, 
p.  478,  of  leaving  with  his  will  a  letter  addressed  to  the  legatees  or 
devisees,  stating  what  he  wishes  to  have  done  with  the  gift,  in  which 
case  it  is  essential  that  the  testator  should  carefully  abstain  from 
communicating  his  intentions  to  the  legatees  or  devisees  during  his 
lifetime. 

(c)  A  gift  for  a  purpose  which  is  neither  superstitious  nor  prohibited 
by  law,  such  as  a  community  of  secular  priests  not  bound  by  vows,  or 
a  community  of  nuns,  will  be  good  as  a  charity  if  the  objects  of  the  com- 
munity are  charitable.  If,  as  in  the  case  of  a  contemplative  order  of  nuns, 
the  objects  are  not  charitable,  the  community  is  in  the  same  legal  position 
as  a  club,  and  an  immediate  gift  to  it  is  a  good  private  gift  to  the 
members  {Cocks  v.  Manners,  1871,  L.  E.  12  Eq.  574);  but  any  trust  for 
such  an  institution  must  be  limited  in  time  so  as  not  to  violate  the  law 
against  perpetuities,  for,  not  being  a  charity,  a  perpetual  trust  would 
be  void  for  remoteness  {Carre  v.  Long,  1860,  2  De  G.,  F.  &  J.  75  ;  45 
E.  E.  550;  cp.  the  principle  laid  down  by  North,  J.,  in  In  re  Dean, 
Cooper  Dean  v.  Stevem,  1889,  41  Ch.  D.  552).  See  also  the  cases 
enumerated  in  article  Charities,  Vol.  II.  pp.  680  et  seq. 

A  Eoman  Catholic  bishop,  being  unknown  to  the  law  of  the  land, 
is  not  a  corporation  sole  with  perpetual  succession.  Hence  in  framing 
trusts  and  bequests  where  such  a  one  is  concerned,  care  has  to  be 
taken  to  describe  him  sufficiently  for  purposes  of  identification  as  an 
individual,  and  to  join,  in  the  event  of  a  vacancy  in  the  episcopal  office, 
as  alternative  donees,  the  person  or  persons  administering  it  for  the 
time  being. 

[Authorities. — For  contemporary  law,  A  Manual  of  the  Law  especially 
affecting  Catholics,  by  W.  S.  Lilly  and  J.  P.  Wallis ;  for  historical  learn- 
ing, Gibson's  Codex;  Cawley's  Law  of  Recusants,  1680;  and  Anstey's 
Guide  to  the  Law  affecting  Roman  Catholics,  1842.] 

Roman  Dutch  Law. — In  Ceylon,  Guiana,  and  the  South 
African  colonies,  the  basis  of  the  local  law  is  Eoman  Dutch.     Like  their 


KONCAEIA  41 

neighbours  in  England,  the  Dutch  people  were  firmly  attached  to  their 
own  customs;  the  Eoman  law  is  said  to  have  been  introduced  by 
William  IL,  but  in  Holland,  as  in  other  continental  countries,  the 
Corpus  Juris  was  always  regarded  as  a  storehouse  of  rules  and  principles. 
The  Reformation,  and  the  emancipation  of  the  Netherlands,  gave  a  great 
impulse  to  legal  study.  Grotius  (1583-1645)  may  be  said  to  have  laid 
the  foundation  of  modern  international  law  in  his  famous  treatise  De 
Jure  Belli  ac  Pads ;  he  also  wrote  an  Introduction  to  the  Laws  of  Holland, 
which  is  still  used  as  a  text-book.  Simon  Van  Leeuwen  (1625-1682)  is 
best  known  as  the  author  of  Commentaries  on  Roman  Dutch  Law; 
his  Censura  Forensis  is  also  "  a  work  of  very  high  authority  "  {Denyssen 
v.  Mostert,  1872,  L.  R.  4  P.  C.  255).  Among  the  authors  cited  with 
respect  in  our  own  Privy  Council  Reports  may  be  mentioned  Huber, 
Noodt,  Vinnius,  Peckius,  and  especially  J.  Voet  (1647-1714),  whose 
Commentary  on  the  Pandects  is  constantly  quoted  and  followed,  especially 
in  South  Africa.  As  explained  in  the  articles  Cape  Colony  ;  Ceylon  ; 
Orange  River  Colony;  Transvaal,  etc.,  the  Roman  Dutch  Law  in 
British  colonies  has  been  considerably  affected  by  English  influences. 

[Authorities. — ^Works  cited  in  foregoing  article,  and  Burge,  Foreign  and 
Colonial  Laws.  A  somewhat  inadequate  translation  of  Van  Leeuwen's 
Commentaries  was  published  in  1820;  a  new  and  better  translation 
(London,  1881)  by  Mr.  J.  Kotze,  some  time  Chief  Justice  of  the 
Transvaal.] 

Romilly'S  Act  (52  Geo.  m.  c.  101). — "An  Act  to  provide  a 
summary  remedy  in  cases  of  abuses  of  trusts  created  for  charitable 
purposes."  It  enables  in  every  case  of  a  breach  of  any  trust  or  supposed 
breach  of  any  trust  created  for  charitable  purposes,  or  whenever  the 
direction  of  the  Court  shall  be  deemed  necessary  for  the  administration 
of  any  trust  for  charitable  purposes,  any  two  or  more  persons  to  present 
a  petition  to  the  Court  stating  such  complaint,  and  praying  such  relief 
as  the  nature  of  the  case  may  require,  and  upon  the  hearing  of  such 
petition  the  Court  is  empowered  to  make  such  order  as  may  be  just. 
It  has  been  decided  that  the  jurisdiction  under  this  Act  is  very  wide 
(Re  Shreivshiry  School,  1849,  1  Macn.  &  G.  325),  and  that  by  reason  of 
the  power  to  administer  the  trust  thereby  given,  the  Court  can  order 
a  sale,  which  on  many  occasions  it  has  done  (Re  Parke's  Charity,  1841, 
12  Sim.  329 ;  59  E.  R.  1158 ;  56  R.  R.  65 ;  Re  Overseers  of  Ecclesall,  1852, 
16  Beav.  297;  51  E.  R.  793;  Re  Jshton's  CharUy,  1856,  22  Beav.  288; 
52  E.  R.  1119). 

Romncy  IVIarsh. — A  large  tract  of  marsh  land  on  the  south 
coast  of  Kent,  the  draining  and  embanking  of  which  has  for  many 
centuries  been  governed  by  special  laws.  The  Marsh  was  incorporated 
at  a  very  early  date  under  the  title  of  "  the  bailiff,  jurats,  and  common- 
alty of  Romney  Marsh,  in  the  county  of  Kent " — the  conservancy  of  the 
drains  and  sea-walls  being  vested  in  a  body  of  twenty-three  lords  of 
manors,  called  the  "  Lords  of  the  Marsh,"  or  the  "  Lords  of  the  Levels." 
The  special  laws  of  the  Marsh  have  been  saved  in  several  modern  Acts 
relating  to  drainage. 

Roncaria. — "Roncaria  or  Runcaria  signifieth  land  full  of 
brambles  and  briars,  and  is  derived  of  roncier,  the  French  word,  which 
signifieth  the  same,  and  as  much  as  senticetum "  (Co.  Litt.  5  a). 


42  KOOD  (EOOD  LOFT) 

Rood  (Rood  Loft). — The  word  has  been  defined  as  "a 
presentment  of  the  carved,  sculptured,  moulded,  or  painted  figure  of 
our  Lord  on  the  cross,  a  crucifix  with  images  at  the  base,"  which,  before 
the  Eeformation,  was  ordinarily  to  be  found  in  parish  churches  in 
England  (Lord  Penzance,  Cliftoii  v.  Ridsdale,  1876,  1  P.  D.  316,  354); 
or  as  a  "  crucifix  which,  when  complete,  is  accompanied  by  the  figures  of 
St.  John  and  the  Virgin  Mary,  placed  one  on  each  side  of  the  foot  of  the 
cross,  though  these  are  often  omitted  "  (Parker,  Glossary  of  Architecture, 
i.  392).  The  rood  was  generally  supported  either  by  a  beam,  called 
a  rood-beam,  or  by  a  gallery,  called  the  rood-loft,  over  the  screen 
separating  the  choir  or  chancel  of  a  church  from  the  nave.  The  rood- 
loft  does  not  appear  to  have  been  common  in  England  before,  if  so  soon 
as,  the  fourteenth  century,  or  general  before  the  fifteenth,  and  was 
approached  from  the  inside  of  the  church  generally  by  a  small  staircase 
in  the  wall,  which  is  often  to  be  found  in  churches  which  have  lost  all 
other  traces  of  them ;  and  it  was  occasionally  placed  above  the  chancel 
arch.  Lights  were  generally  kept  burning  in  rood-lofts,  and  from  them 
the  rood  itself  was  kept  crowned,  adorned,  or  veiled,  as  the  season  might 
require.  The  rood-screen  was  the  name  given  to  the  lattice  work  and 
cross-barred  partition  which  in  some  churches  is  interposed  between  the 
chancel  and  the  nave,  or  to  the  screen  of  elaborately-carved  solid  wood 
or  stone,  such  as  in  some  of  our  cathedrals  separates  the  choir  from  the 
rest  of  the  church.  The  rood-beam  was  sometimes  termed  the  candle- 
beam  (from  the  lights  kept  burning  there) ;  and  the  terms  rood-tower  or 
rood-steeple  were  sometimes  applied  to  the  tower  built  over  the  inter- 
section of  a  cruciform  church,  and  rood-arch  to  the  arch  between  the 
nave  and  chancel,  from  its  being  immediately  over  the  rood-loft 
(Oliphant,  Church  Ornaments  (1852);  Parker,  Glossary  of  Architecture 
(1860),  i.  392;  Vicar  of  St.  John  the  Baptist,  Timberhill,  v.  Rectors, 
[1895]  P.  71,  78). 

Eoods  were  left  untouched  under  Henry  viii. ;  and  in  Cromwell's 
Injunctions  of  1538,  the  clergy  are  ordered  to  remove  such  images  as 
had  been  superstitiously  applied  or  treated  with  over-proportioned 
regard,  and  to  this  purpose  not  to  offer  any  candles  or  tapers  to  be  set 
before  any  image,  but  only  the  light  in  the  rood-loft,  the  light  before 
the  sacrament  of  the  altar,  and  the  light  about  the  sepulchre,  these 
being  allowed  to  stand  for  the  ornamenting  of  the  church  and  the 
solemnity  of  divine  service  (Perry,  Church  Ornaments  (1857),  17). 
Under  Edward  vi.,  however,  together  with  other  images,  they  were 
generally  taken  down,  and  after  being  restored  under  Mary,  were  again 
taken  down  under  Elizabeth.  In  1561  there  is  an  order  by  the 
Ecclesiastical  Commissioners  with  regard  to  all  rood-lofts  not  already 
transposed,  that  "  the  upper  part  thereof  with  the  soUes  be  quite  taken 
down  into  the  upper  parts  of  the  vautes,  and  beam  running  in  length 
over  the  said  vautes,  by  putting  some  convenient  crest  upon  the  said 
beam  towards  the  church  "  (Heylyn's  Reformation,  quoted  in  Vicar  of 
St.  John  the  Baptist,  Timberhill,  v.  Rectors,  supra,  p.  80) ;  and  a  similar 
order  appears  in  Archbishop  Grindall's  articles  in  1576  (Oliphant,  above). 

The  legality  of  roods  or  rood-lofts  at  the  present  day  in  a  church  of 
the  Church  of  England  is  governed  by  the  general  law  of  that  Church 
relating  to  Images  (q.v.),  and  depends  on  "  whether  they  do  or  do  not, 
or  will  or  will  not,  encourage  or  lead  to  idolatrous  or  superstitious 
worship  in  the  place  where  they  are  or  are  to  be  put "  (Lindley,  'L.J., 
R.  V.  Bishop  of  London,  1889,  24  Q.  B.  D.  213,  237);  or  "whether  they 


BOOTS  43 

are  set  up  for  the  purpose  of  architectural  decoration,  or  are  in  danger 
of  being  the  objects  of  superstitious  reverence"  (Phillpotts  v.  Boyd, 
1874,  L.  K.  6  P.  C.  435).  On  this  principle  it  has  been  held  that  a  crucifix 
standing  by  itself  on  the  top  of  a  screen  of  open  ironwork  at  the  entrance 
of  the  chancel  is  unlawful,  as  being  not  an  architectural  decoration, 
but  in  danger  of  being  an  object  of  superstitious  reverence  {Ridsdale  v. 
Clifton,  1876, 1  P.  D.  316 ;  2  ibid.  276).  See,  too,  the  following  cases  :— 
Vicar  of  St.  John  the  Baptist,  Timherhill,  v.  Rectors,  [1895]  P.  71;  Vicar 
of  Richmond  v.  Inhabitants,  [1897]  P.  70;  Hughes  v.  IJdwards,  1877, 
2  P.  D.  361 ;  Rector  of  Barsham  v.  Parishioners,  [1896]  P.  256 ;  In  re  St. 
Anselm's,  Pinner,  [1901]  P.  202 ;  Vicar  of  Paignton  v.  Inhabitants,  [1905] 
P.  111. 

\_Authorities. — See  Phillimore,  Eccl.  Law,  2nd  ed.,  and  authorities 
above  cited.] 

Rook. — See  Birds. 

Roots. — The  root  of  a  tree  or  plant  is  that  part  thereof  under 
ground  by  means  of  which  it  draws  nourishment  from  the  soil.  The 
position  of  the  root  is  sometimes  of  great  importance  in  establishing 
which  of  two  adjoining  landowners  should  have  the  ownership  of  the 
tree.  In  Eoman  law  it  was  laid  down  that  if  a  portion  of  one  man's 
land  was  carried  away  by  an  inundation,  it,  primarily  speaking, 
remained  his,  but  if  it  was  united  to  a  neighbour's  land  for  some 
length  of  time,  and,  in  particular,  the  trees  which  had  been  carried 
away  with  it  took  root  in  the  neighbour's  ground,  then  these  trees  became 
part  of  the  latter  (Justin.  Inst.,  2,  1,  21).  On;  the  same  principle  it 
was  laid  down  that,  if  Titus  planted  a  tree  belonging  to  Maevius  in 
his  own  ground,  or  conversely  planted  one  of  his  own  trees  in  Maevius's 
ground,  the  tree  in  each  case  went  to  the  owner  of  the  ground  in 
which  it  was  planted,  that  is,  if  it  had  taken  root,  for  before  it  had 
taken  root  it  remained  the  property  of  its  former  owner  (Justin.  Inst., 
2.  1,  31). 

If  a  tree  had  its  roots  partly  in  one  man's  ground  and  partly  in 
another's  it  was  deemed  to  be  common  property  (Justin.  Inst.,  2,  1, 
31).  With  us  the  same  principles  will  primd  facie  hold  good ;  but 
with  reference  to  the  last-mentioned  instance,  where  a  root  extends 
over  more  than  one  man's  property,  it  has  been  said  that  a  person  may 
cut  away  that  portion  of  the  root  which  crosses  the  line  of  demarcation 
of  his  property  (Rolle,  394). 

Roots  are  within  the  provisions  of  the  Larceny  Act,  1861,  24  &  25 
Vict.  c.  96,  sec.  36  of  which  enacts  that  stealing,  or  destroying,  or 
damaging  with  intent  to  steal  the  plant,  root,  etc.,  shall  be  an  offence 
punishable  by  imprisonment  for  not  more  than  six  months  with  or 
without  hard  labour,  or  a  fine  not  exceeding  £20  beyond  the  value  or 
damage.  A  second  or  subsequent  offence  is  a  felony.  So  by  sec.  37, 
stealing  or  destroying,  etc.,  any  cultivated  root  or  plant  used  as  food 
or  medicine,  etc.,  is  punishable  by  imprisonment  for  not  more  than  one 
month  with  or  without  hard  labour,  or  a  fine  of  £1  and  costs  beyond 
the  value  or  damage.  For  a  second  offence  the  term  of  imprisonment 
may  be  six  months.  The  Malicious  Injuries  to  Property  Act,  1861, 
24  &  25  Vict.  c.  97,  also  has  provisions  relating  to  roots,  to  damage 
which  is  thereby  punishable  by  a  fine  of  £20  in  addition  to  the 
damage,  or  imprisonment  with  or  without  hard  labour  for  six  months 


44  KOSTEE 

(s.  23).  A  second  offence  is  an  indictable  felony,  not  triable  sum- 
marily. So  also  the  destruction  or  damaging  of  roots  used  for  food  or 
medicine,  etc.,  is  punishable  by  a  fine  of  £1  in  addition  to  the  damage, 
or  imprisonment  with  or  without  hard  labour  for  one  month  (s.  24). 
For  a  second  offence  the  punishment  is  six  months  with  or  without 
hard  labour. 

Roster. — In  military  matters,  a  plan  or  table  by  which  the  duty 
of  officers  or  troops  is  regulated  (James,  Military  Dictionary). 

Rota. — A  roll  or  list  showing  the  order  in  which  persons  are  to  be 
selected  to  perform  particular  duties.  For  example,  under  the  Supreme 
Court  of  Judicature  Act,  1881,  s.  13,  three  of  the  puisne  judges  of  the 
King's  Bench  Division  are  annually  placed  upon  the  rota  for  the  trial 
of  election  petitions. 

Roulette  and  Roly-poly. — Two  names  for  the  same 
game,  which  is  declared  an  unlawful  game  and  lottery  by  18  Geo.  ii. 
c.  34  (see  Gaming  ;  Lotteries). 

Rout  is  disturbance  of  the  peace  by  persons  assembled  together 
with  intent  to  do  something  which,  if  executed,  will  make  them  rioters, 
i.e.  "  come  for  some  unlawful  purpose  intending  to  do  something  in 
violence,  but  do  not  go  to  the  full  extent  or  take  any  actual  step  for 
accomplishing  their  purpose  "  (Bedford  v.  Berley,  1822,  1  St.  Tri.  N".  S. 
1211,  1214,  and  1  Russell,  Crimes,  6th ed.,  569  ;  and  see  Riding  Armed; 
Riot  ;  Assembly,  Unlawful).  It  is  more  than  an  unlawful  assembly 
in  that  it  has  made  a  motion  towards  executing  the  common  purpose 
for  which  the  people  are  assembled. 

Royal  Assent.— See  Assent,  Royal. 

Royal  Charter. — "  A  Royal  Charter  is  a  written  instrument 
containing  a  grant  by  the  Crown  to  persons  therein  designated,  either 
of  jura  regalia,  or  other  franchise  or  liberties,  rights,  powers,  privileges, 
or  immunities,  or  of  chattels  or  estates  in  land,  or  any  of  these,  made  in 
the  form  of  letters  patent  with  the  great  seal  appended  to  it,  and  directed 
or  addressed  to  all  the  subjects  of  the  Crown  "  (Grant,  Law  of  Corpora- 
tions, p.  9).  Letters  patent  for  inventions  (see  Patents) — an  important 
class  of  royal  grants — are  now  sealed  with  the  seal  of  the  Patent  Office, 
and  Royal  Charters  and  certain  other  letters  patent  may  be  sealed  with 
the  wafer  great  seal  (see  Great  Seal). 

Royal  Charters  occupy  a  conspicuous  place  in  our  constitutional 
history.  Under  Henry  i.,  and  the  immediately  succeeding  monarchs, 
grants  of  liberties  to  the  nation  and  limitations  of  the  royal  power  were 
embodied  in  charters,  issued  at  the  commencement  of  each  reign,  with  the 
view  of  gaining  the  support  of  the  people.  The  charter  of  liberties  issued 
by  Henry  l.  at  his  coronation  was  that  upon  which  the  succeeding  charters 
were  based,  all  of  these  leading  up  to  the  Great  Charter  of  John  "  the 
keystone  of  English  liberty  "  (see  Magna  Carta).  (See  these  charters 
collected  in  Stubbs,  Select  Charters.)  In  later  times  legislation  has  taken 
the  place  formerly  occupied  by  charters  of  liberties. 

Besides  the  various  charters  of  liberties  above  mentioned,  which  wete 
granted  by  the  Sovereign  to  the  nation  at  large,  there  were  in  addition 


KOYAL  CHAETEE  45 

numerous  contemporaneous  charters  to  towns  conferring  privileges  upon 
them,  in  some  instances  giving  the  right  to  elect  their  own  officers, 
as  well  as  immunities  from  various  imposts.  In  some  of  the  towns 
to  which  these  early  charters  were  granted  there  is  discernible,  says 
Stubbs,  "  a  modified  corporate  character  little  short  of  the  later  idea  of 
incorporation  ;  "  but  it  was  not  till  a  later  date  that  complete  charters  of 
incorporation  were  granted,  one  of  the  first  being  that  given  to  Coventry 
in  1345  by  Edward  iii.  (Gross,  The  Gild  Mercha7it,  vol.  i.  p.  93%.). 
Charters  to  towns  are  now  granted  under  the  provisions  of  the  Municipal 
Corporations  Act,  1882  (as  to  which,  see  Municipal  Corpokations). 

Charters  of  incorporation  are  also  sometimes  granted  to  trading 
companies,  univei-sities,  colleges,  and  other  institutions.  Prior  to  the 
Companies  Acts  (see  Company),  many  trading  companies  were  incor- 
porated by  Eoyal  Charter,  and  this  method  of  incorporation  may  still  be 
adopted ;  but  since  provision  has  been  made  by  the  Companies  Acts  for 
the  incorporation  of  trading  companies,  as  well  as  others  formed  not  for 
profit,  but  for  the  purpose  of  promoting  commerce,  art,  science,  religion, 
charity,  or  other  useful  object  (see  Companies  Act,  1867,  s.  23)  by 
registration,  Eoyal  Charters  are  less  freely  issued.  Charters  are  still 
occasionally  issued  for  the  incorporation  of  universities,  colleges,  and 
similar  institutions.  Within  recent  years  such  charters  have  been 
granted  to  the  Eoyal  College  of  Music,  the  Institute  of  Journalists, 
the  National  Society  for  Prevention  of  Cruelty  to  Children,  and  various 
other  associations. 

Application  for  a  charter  of  incorporation  is  made  by  petition  to  the 
King  in  Council.  The  petition  and  draft  of  the  proposed  charter  are 
left  at  the  Privy  Council  Office,  and  are  then  referred  to  a  Committee  of 
the  Council ;  if  for  trading  purposes,  to  the  Board  of  Trade.  Notice  of 
every  application  for  a  charter  is  published  in  the  London  Gazette,  and 
where  the  application  is  for  a  charter  to  a  trading  company,  this  notice 
has  to  be  given  in  the  Gazette,  and  also  in  one  or  more  of  the  newspapers 
circulating  in  the  county  where  the  principal  place  of  business  of  the 
company  is  to  be,  on  three  several  occasions,  at  intervals  of  not  less  than 
one  week  (Chartered  Companies  Act,  1837,  s.  32).  The  notice  gives 
intimation  that  petitions  for  or  against  the  grant  of  the  charter  applied 
for  may  be  lodged  at  the  Privy  Council  Office  within  the  time  specified, 
at  the  expiration  of  which  the  application  is  considered,  and,  if  thought 
fit,  granted.  An  additional  formality  is  required  in  any  application  for 
the  grant  of  a  charter  for  the  foundation  of  any  college,  university,  or 
institution  in  the  nature  of  a  college  or  university ;  in  this  case  a  copy 
of  the  application,  together  with  a  copy  of  the  draft  charter  applied 
for,  must  be  laid  before  both  Houses  of  Parliament  for  a  period  of  not 
less  than  thirty  days  before  the  report  of  the  Committee  of  the  Privy 
Council  is  submitted  to  His  Majesty  (College  Charter  Act,  1871,  ss.  1,  2). 
A  charter,  if  granted,  is  sealed  with  the  great  seal  or  with  the  wafer 
great  seal. 

"  A  charter  is  not  necessarily  valid,  for  it  may  have  been  obtained 
from  the  Crown  by  misrepresentation,  or  it  may  have  been  granted  by 
the  Crown  in  excess  of  its  prerogative,  and  in  either  case  the  charter 
will  be  void  "  (Lindley,  Companies,  6th  ed.,  p.  137 ;  see  also  Simpson  v. 
A.-G.,  1904,  74  L.  J.  Ch.  1).  Further,  if  a  charter  is  uncertain,  or 
injurious  to  the  rights  and  interests  of  third  parties,  it  may  be 
revoked,  the  remedy  being  by  scire  facias  (Q-'^-)  (^-  v.  Hughes,  1866, 
L.  E.  1  P.  C.  pp.  87,  88 ;  see  also  £.  v.  Butler,  1685,  3  Lev.  221 ;  83 


46  EOYAL  COUETS  OF  JUSTICE 

E.  E.  659 ;  Cumming  v.  Forrester,  1820,  2  Jac.  &  W.  342 ;  37  E.  E.  656 ; 
22  E.  E.  157;  Eastern  Archipelago  Co.  v.  R,  1853,  2  El.  &  Bl.  914). 

A  charter  may  be  surrendered  to  the  Crown,  but  to  be  effective  the 
surrender  has  to  be  accepted  and  enrolled  in  the  enrolment  department 
of  the  Central  Office  of  the  Supreme  Court  (Lindley,  Companies,  p.  138). 

See  Companies  (Chartered)  ;  Corporation. 

[^Authorities. — Lindley,  Companies,  6th  ed.,  pp.  3, 136  et  seq. ;  Forsyth, 
Constitutional  Law,  pp.  380  et  seq. ;  Todd,  Parliameniary  Government 
(Walpole's  ed.),  pp.  215-218 ;  Grant,  Corporations,  pp.  9  et  seq.l 

Royal  Courts  of  Justice. — See  Supreme  Court. 

Royal  Fam  i  ly  is  composed  of  His  Majesty  King  Edward  vii.  and 
his  descendants;  the  descendants  of  Her  late  Majesty  Queen  Victoria  ;  of 
H.E.H.  the  first  Duke  of  Cambridge  (His  Majesty's  great-uncle) ;  and  of 
H.E.H.  the  late  Duke  of  Cumberland,  King  of  Hanover,  son  of  King 
George  iii. 

The  following  statutes  have  been  passed  relating  to  annuities  to 
members  of  the  royal  family  now  living : — 

The  29  &  30  Vict.  c.  7,  granted  an  annuity  of  £6000  to  Her  Eoyal 
Highness  the  Princess  Helena  Augusta  Victoria  for  life. 

The  34  &  35  Vict.  c.  1,  granted  an  annuity  of  £6000  for  life  to  Her 
Eoyal  Highness  the  Princess  Louise  Caroline  Alberta  on  her  marriage 
with  the  Marquis  of  Lome,  Duke  of  Argyll  (then  Marquis  of  Lome). 

The  34  &  35  Vict.  c.  64,  granted  an  annuity  of  £15,000  to  Prince 
Arthur  William  Patrick  Albert,  Duke  of  Connaught,  for  life. 

The  41  &  42  Vict.  c.  46,  granted  an  additional  annuity  of  £10,000 
for  life  to  the  Duke  of  Connaught,  and  an  annuity  of  £6000  to  the 
Duchess  of  Connaught  in  the  event  of  her  surviving  the  Duke  of 
Connaught. 

Under  the  45  &  46  Vict.  c.  5,  the  widow  of  the  late  Duke  of  Albany 
receives  an  annuity  of  £6000. 

The  48  &  49  Vict.  c.  24,  granted  an  annuity  of  £6000  for  life  to 
Princess  Beatrice  (Princess  Henry  of  Battenberg). 

When  His  present  Majesty  came  to  the  throne  in  1901  iiew  arrange- 
ments were  come  to  concerning  provision  for  himself  and  the  royal 
family. 

These  are  embodied  in  the  Civil  List  Act,  1901,  1  Edw.  vii.  c.  4. 

The  King's  Civil  List  is  fixed  at  £470,000  annually. 

The  Duke  of  Cornwall  and  York  receives  £20,000  annually,  and  the 
Duchess  £10,000  annually;  but  if  the  Duke  should  predecease  his  wife, 
she  thereupon  becomes  entitled  to  a  life  annuity  of  £30,000. 

Each  of  the  King's  daughters  is  to  receive  a  life  annuity  of  £6000. 

Should  Her  Majesty  the  Queen  survive  the  King  she  thereupon 
becomes  entitled  to  an  annuity  of  £70,000. 

Royal  Fish. — See  Fish,  Eoyal. 

Royal  Marines. — The  Marines  are  a  force  under  the  control 
of  the  Admiralty,  sometimes  quartered  on  shore,  and  sometimes  sent  to 
do  duty  on  board  of  transports  or  merchant  ships.  When  they  are 
borne  on  the  books  of  a  ship  of  war  (otherwise  than  for  service 
ashore,  as  to  which  see  Army  Act,  1881,  44  &  45  Vict.  c.  58,  s.  179, 
sub-sees.  15  (b),  18),  they  are  subject  to  the  Naval  Discipline  Acts,  as  if 


ROYAL  MAERIAGES  47 

they  were  seamen  of  the  Eoyal  Navy.  When  they  are  not  on  the  books 
of  a  ship  of  war  their  discipline  and  regulation  come  within  the  Army 
Act,  1881,  subject  to  certain  modifications  (s.  179).  One  of  these  modi- 
fications relates  to  the  authority  by  which  the  articles  of  war  for  the 
Royal  Marines  are  to  be  made,  which  is  by  that  Act  intrusted  to  the 
Admiralty.  Marines  may  by  the  Naval  Reserve  Act,  1900,  63  &  64 
Vict.  c.  52,  be  enlisted  with  a  condition  of  service  in  the  division  of  the 
Royal  Naval  Reserve  created  by  that  Act.  Sec.  2  of  the  Naval  Forces 
Act,  1903,  3  Edw.  vii.  c.  6,  authorises  the  Admiralty  to  raise  a  force  of 
Royal  Marine  Volunteers  available  for  service  beyond  the  seas,  who 
shall  be  subject  to  the  provisions  of  the  Volunteer  Acts,  with  the  sub- 
stitution of  the  Admiralty  for  the  Secretary  of  War.  When  they  are 
subject  to  military  law  the  Army  Act  shall  apply  to  them  as  it  does  to 
the  Marines.  Hitherto,  however,  no  such  volunteer  force  has  been 
created.  By  the  Army  (Annual)  Act,  1904,  3  Edw.  vii.  c.  6,  the 
expression  "man  of  the  Royal  Marines  "in  sec.  179  of  the  Army  Act 
includes  marine  reservists  and  volunteers  raised  under  the  Acts  of  1900 
and  1903,  when  called  into  actual  service  and  when  being  trained  or 
exercised. 

Royal  Marriages. — The  marriages  of  the  royal  family  are 
specially  exempted  from  the  old  Marriages  (Lord  Hardwicke's)  Act, 
26  Geo.  II.  c.  33,  s.  17,  and  from  the  present  Act  regulating  Church  of 
England  marriages  (4  Geo.  iv.  c.  76,  s.  30),  and  also  from  the  Noncon- 
formist Marriage  Act,  6  &  7  Will.  iv.  c.  85,  8.  45,  and  so  that  any 
member  of  the  royal  family  cannot  be  validly  married  according  to  the 
Nonconformist  rites,  or  in  the  office  of  a  superintendent  registrar. 
Royal  marriages  are  therefore  regulated  by  the  old  common  and  canon 
law  in  force  prior  to  Lord  Hardwicke's  Act.  By  the  common  law  of 
England,  which  existed  down  to  1754,  the  presence  of  a  clergyman  in 
holy  orders,  either  of  the  Church  of  England  or  the  Church  of  Rome, 
at  the  time  of  solemnisation  was  essential  to  the  validity  of  the  marriage ; 
and  a  marriage  solemnised  by  any  such  clergyman,  whether  publicly  or 
privately,  at  whatever  time  or  place,  and  in  whatever  form  or  manner 
(between  persons  competent)  was  valid  without  any  previous  publica- 
tion of  banns,  licence,  notice,  or  residence.  Royalty  are  therefore  free 
from  the  requirements  laid  down  by  the  above-mentioned  Marriage  Acts, 
and  they  can  validly  marry  without  banns  or  licence,  and  in  a  place 
where  marriages  could  not  otherwise  be  solemnised,  as,  for  example,  in 
a  private  room  or  chapel  not  licensed  for  marriages. 

Marriages  of  royalty  are  exempt  also  from  the  Foreign  Marriage 
Acts,  1849-1891,  and  the  Foreign  Marriage  Act,  1892,  55  &  56  Vict, 
c.  23,  8.  23,  which  repeals  the  preceding  Acts  of  1849-1891.  The 
exemption  holds  good  even  though  only  one  of  the  parties  is  royal. 

By  an  Act  passed  in  1772  (12  Geo.  ill.  c.  11),  called  "  An  Act  for  the 
better  regulating  the  Future  Marriages  of  the  Royal  Family,"  it  is  pro- 
vided that  no  descendant  of  His  late  Majesty  George  ii.  (other  than 
the  issue  of  princesses  married  or  who  may  marry  into  foreign  families) 
shall  be  capable  of  contracting  matrimony  without  the  previous  consent 
of  His  Majesty,  his  heirs  or  successors,  signified  under  the  Great  Seal, 
declared  in  Council,  and  entered  in  the  Privy  Council  books,  and  that 
every  marriage  of  any  such  descendant,  without  such  consent  first  had  and 
obtained,  shall  be  null  and  void  to  all  intents  and  purposes  whatsoever. 
If  any  such  descendant,  above  twenty-five  years  of  age,  shall  persist  in 


48  EOYAL  MINES 

his  or  her  resolution  to  contract  a  marriage  disapproved  of,  then  such 
descendant,  upon  giving  notice  to  the  Privy  Council  (which  notice  is  to 
be  entered  in  the  books  thereof)  may  at  any  time  from  the  expiration 
of  twelve  calendar  months  after  such  notice  has  been  given,  contract 
such  marriage,  which  shall  be  good,  unless  both  Houses  of  Parliament 
shall  disapprove.  Persons  who  wilfully  solemnise  or  assist  at  such  a 
marriage  without  such  consent,  on  being  duly  convicted  thereof,  shall 
incur  and  suffer  the  pains  and  penalties  ordained  and  provided  by  the 
Statute  of  Provision  and  Praemunire  made  in  the  sixteenth  year  of  the 
reign  of  Eichard  ii.     This  Act  was  directed  against  morganatic  unions. 

Even  the  Sovereign  and  all  the  other  members  of  the  royal  family 
are  bound  by  the  ordinary  law  of  marriage,  as  regards  monogamy  and 
divorce.  Henry  viii.  obtained  a  legal  decree  of  nullity  or  marriage  from 
Catherine  of  Arragon  and  from  Anne  Boleyn,  and  George  IV.  promoted 
a  bill  for  a  parliamentary  divorce  from  Queen  Caroline.  And  see  further, 
articles  Act  of  Settlement  ;  Bill  of  Eights. 

Royal  Mines. — A  term  applied  to  gold  and  silver  mines, 
The  subject  is  dealt  with  in  the  article  Mines  and  Mineeals,  Vol.  IX., 
at  p.  240. 

Roy  a.  I  Palaces. — in  the  Civil  Service  Estimates  for  the  year 
1908-09,  the  following  residences  are  given  under  the  heading  Eoyal 
Palaces : — 

I.  Palaces,  etc.,  in  the  personal  occupation  of  His  Majesty — Bucking- 
ham Palace;  Eoyal  Mews,  Pimlico;  Windsor  Castle;  Windsor  Home 
Park,  with  Adelaide  Lodge,  etc, 

II.  Palaces  partly  in  the  occupation  of  His  Majesty — St.  James's 
Palace  (State  Eooms,  Chapel  Eoyal,  Guard  Eooms,  Offices,  and  Official 
Eesidences). 

III.  Palaces  not  in  the  occupation  of  His  Majesty — St.  James's  Palace 
(Eesidential  Apartments);  Marlborough  House;  Kensington  Palace; 
Hampton  Court  Palace ;  White  Lodge,  Eichmond  Park ;  Kew  Palace ; 
Kew  Eoyal  Observatory;  Frogmore  House  and  Groimds;  Military 
Knights'  Houses,  Windsor  Castle;  Pembroke  Lodge,  Thatched  House 
Lodge,  and  East  Sheen  Cottage,  Eichmond  Park;  The  Upper  Lodge 
and  Paddocks ;  The  Cottage,  Hawthorn  Lodge  and  Cottages  in  Bushey 
Park ;  House  in  Hyde  Park  (late  Eanger's  Lodge)  ;-Holyrood  Palace. 

The  estimates  under  the  above  headings  are  as  follows : — 

1908-09.  1907-08. 

1.  £22,322 £25,583 

2.  8,038 6,585 

3.  33,839 32,839 

As  to  inquests  in  the  royal  palaces,  see  article  Coronee. 

In  the  case  of  A.-G.  v.  Donaldson,  1842,  10  Mee.  &  W.  117 ;  11  L.  J. 
Ex.  338 ;  62  E.  E.  540,  it  was  held  that  a  distress  cannot  be  levied  for 
sewer  rates  within  the  precincts  of  a  royal  palace  occupied  as  the 
residence  of  a  sovereign. 

There  is  a  distinction  between  a  royal  palace  and  a  royal  palace  which 
is  also  a  royal  residence.  Hampton  Court  Palace  is  a  royal  palace,  but 
not  a  royal  residence,  and  therefore  is  not  exempt  from  execution,  within 
it,  of  civil  process.  The  Sovereign'  does  not,  in  fact,  reside  there ;  and 
the  circumstances  that  the  chief  officials  and  the  chaplain,  together  with 


EOYAL  SOCIETY  49 

the  housekeeper  and  the  gardener,  are  all  appointed  by  the  Crown,  and 
paid  out  of  the  civil  list — that  a  pew  is  always  kept  in  the  chapel  ready 
for  the  royal  use — that  certain  apartments  there  are  known  as  "  State 
apartments  •' — that  a  guard  of  honour  is  always  posted  there — that  the 
inmates,  to  whom  the  Sovereign  has  graciously  granted  the  use  of  apart- 
ments, hold  such  apartments  entirely  at  the  pleasure  of  the  Crown — 
and  that  the  grapes  grown  in  the  vinery  are  always  kept  for  the  service 
of  His  Majesty's  table,  do  not  constitute  it  a  royal  residence,  so  as  to 
confer  the  exemption  of  the  levying  of  Q,fi.fa.  in  some  of  the  apartments 
of  the  palace ;  and  a  sheriff  is  not  liable  to  an  information  for  intrusion 
{A.-G.  V.  Dakin  and  Others,  1869,  L.  E.  4  H.  L.  338).  See  also  the 
cases  reviewed  in  the  judgment  of  Jessel,  M.E.,  in  Combe  v.  De  la  Bere, 
1882,  22  Ch.  D.,  at  p.  338. 

Royal  Peculiar.— See  Peculiae. 
Royal  Prerogative— See  Prerogative. 

Royal  Society. — The  Eoyal  Society  consists  of  a  number  of 
persons  associated  together  for  the  purpose  of  promoting  mathematical 
and  physical  science.  It  is  the  most  influential  of  the  scientific  societies, 
and  was  incorporated  by  Charles  ii.  in  1663.  Originally  located  near 
Gresham  College,  Crane  Court,  it  was  removed  in  1780  to  Somerset 
House,  and  since  1857  it  has  occupied  rooms  in  Burlington  House, 
Piccadilly. 

The  following  are  some  of  the  scientific  matters  upon  which  the 
Society  has  been  consulted  by,  or  has  memorialised,  the  Government 
during  the  last  century: — Standard  Measures  of  Length,  1816; 
Expedition  in  Search  of  North- West  Passage,  1817 ;  Use  of  Coal-tar  in 
Vessels  of  War,  1822 ;  Best  Manner  of  Measuring  Tonnage  of  Ships ; 
Pendulum  Observations  in  India,  1865 ;  Deep  Sea  Eesearch,  1868 ; 
Eclipse  Expedition,  1875 ;  Vivisection  Bill,  1876 ;  Prevention  of  Acci- 
dents in  Mines,  1879;  Borings  in  the  Delta  of  the  Nile,  1883. 

A  statement  of  the  trust  funds  administered  by  the  Eoyal  Society 
will  be  found  in  their  published  "  Proceedings,"  under  date  November 
30  of  each  year,  and  the  origin  and  History  of  these  funds  will  be 
found  in  Weld's  History  of  the  Royal  Society,  and  in  W.  Spottiswoode's 
Anniversary  Address  for  1874  {Proc.  Boy.  Soc,  xxiii.  p.  49). 

Under  the  existing  statutes  of  the  Eoyal  Society,  every  candidate 
for  election  must  be  recommended  by  certificate  in  writing,  signed  by 
six  or  more  fellows,  of  whom  three  at  least  must  sign  from  personal 
knowledge.  From  the  candidates  so  recommended,  the  council  annually 
select  fifteen  by  ballot,  and  on  the  first  Thursday  in  June  the  names 
so  selected  are  submitted  to  the  Society  in  the  form  of  a  printed 
balloting-sheet,  with  space  left  for  erasure  and  substitution  of  names. 
Princes  of  the  blood  royal  may,  however,  be  proposed  at  any  ordinary 
meeting,  and  put  to  the  vote  on  the  same  day,  and  any  member  of  the 
Privy  Council  may  be  balloted  for  on  the  third  ordinary  meeting  from 
the  day  upon  which  his  certificate  is  read.  Foreign  members,  not 
exceeding  fifty,  may  be  selected  by  the  council  from  among  men  of 
the  greatest  scientific  eminence,  and  proposed  to  the  Society  for  election. 
Every  member  of  the  privileged  class  is  liable  to  an  admission  fee  of 
£10,  and  an  annual  payment  of  £4 ;  other  fellows  pay  £3  per  annum. 

The  composition  for  annual  payments  is  £60. 
VOL.  XIII.  4 


50  EOYAL  SUPEEMACY 

Royal  Supremacy. — The  supremacy  of  the  Crown  of 
England  over  all  persons,  and  in  all  causes,  ecclesiastical  as  well  as 
civil,  was  always  recognised  as  indubitable  at  common  law  (Coke, 
Inst.,  iv.  chap.  74 ;  Hale,  Pleas  of  Crown,  i.  75)  ;  and  was  both  in  practice 
and  in  principle,  maintained  long  before  the  reign  of  Henry  vill.,  when 
it  first  received  statutory  acknowledgment.  Thus  the  King's  Courts 
had  power  to  prohibit  the  ecclesiastical  Courts,  as  being  inferior  Courts, 
if  exceeding  their  recognised  legal  jurisdiction;  and  the  appeals  in 
ecclesiastical  causes,  when  necessary,  went  "from  the  archdeacon  to 
the  bishop,  and  from  the  bishop  to  the  archbishop  ;  and  if  justice  were 
not  done  by  the  archbishop,  the  last  resort  was  to  the  King,  according 
to  whose  commandment  the  cause  was  finally  determined  in  the  arch- 
bishop's Court,  without  any  further  process,  except  by  the  King's  leave ; " 
this  being  claimed  as  an  ancient  liberty  and  custom  of  the  Church  of 
England  in  the  Constitutions  of  Clarendon  {q.v.)  of  1164.  Under  Stephen 
and  John,  "  the  supreme  devolution  of  ecclesiastical  causes  came,  but 
by  degrees,  and  at  first  by  reverent  indulgence,  to  the  Pope ;  "  and 
appeals  to  Eome  in  causes  admittedly  within  the  jurisdiction  of  the 
ecclesiastical  Courts  of  England  became  common,  and  were  acquiesced 
in,  but  only  with  the  limitation  that  the  King's  authority  was  not 
prejudiced  thereby.  Thus  a  statute  of  1337  (27  Edw.  ill.  i.  1)  made 
it  a  praemunire  to  bring  any  suit  to  a  foreign  Court  to  answer  of  things 
whereof  the  cognisance  belongs  to  the  King's  Court;  and  a  statute  of 
1392  (16  Eich.  ii.  5)  recites  the  complaint  of  the  Commons  to  the  King, 
that  "  the  Pope  had  issued  processes  and  sentences  of  excommunication 
against  English  bishops  for  actingin  obedience  to  English  law, and  intended 
to  translate  other  English  bishops,  some  out  of  the  realm,  and  some  to 
other  English  dioceses ;  and  their  declaration  that  the  Crown  of  England 
had  been  so  free  at  all  times  that  it  had  been  in  no  earthly  subjection,  but 
immediately  subject  to  God  in  all  things  touching  the  regality  thereof ; 
and  that  the  things  complained  of  and  so  attempted  are  clearly  against 
the  king's  Crown  and  his  regality,  used  and  approved  of  the  time  of  all 
his  progenitors."  Legislation  in  matters  of  faith  had  also  taken  place, 
e.g.  against  heresy,  in  1382  (5  Eich.  ii.  stat.  2,  c.  4),  1400  (2  Hen.  iv. 
c.  15),  and  1414  (2  Hen.  v.  stat.  1,  c.  7)  against  the  Lollards  (and  see 
Hale,  P.  C,  i.  chap.  xxx.).  It  was  also  recognised  that  Convocation  could 
only  meet  when  summoned  by  the  King's  writ;  and  their  canons  or 
constitutions  could  not  be  enforced  if  they  were  "  contrariant  or  repug- 
nant to  the  King's  prerogative,  or  the  customs,  laws,  or  statutes  of 
the  realm."  Lastly,  with  regard  to  bishoprics,  which  were  originally 
donatives  of  the  Crown  by  letters  patent,  the  practice  was  for  the 
Crown  to  grant  its  licence  for  free  election  to  be  held  to  fill  a  vacancy, 
sending,  however,  at  the  same  time  its  missive,  naming  the  person 
whom  the  King  desired  to  have  elected ;  and  the  election,  when  made, 
was  subject  to  the  King's  assent,  the  newly  elected  bishop  not  having 
his  temporalities  restored  till  he  had  sworn  allegiance  to  the  King,  but 
confirmation  and  consecration  being  in  the  power  of  the  Pope.  The 
claim  of  the  Pope  to  collate  to  bishoprics,  in  addition  to  this  power, 
was  defeated  by  the  Statute  of  Provisors,  25  Edw.  iii.  stat.  6. 

The  bishop  elected,  besides  taking  an  oath  "to  be  faithful  and 
obedient  to  St.  Peter,  and  to  the  holy  Church  of  Eome,  and  my  lord 
the  Pope  and  his  successors  canonically  entering,"  also  took  an  oath  to 
the  King,  "  renouncing  all  grants  which  I  have  or  shall  have  hereafter, 
of  the  Pope's  holiness,  of  or  for  the  said  bishopric,  that  in  any  wise  hath 


EOYAL  SUPREMACY  51 

been,  is,  or  hereafter  may  be  hurtful  or  prejudicial  to  your  highness, 
your  heirs  and  successors,  dignity,  privilege,  or  estate  royal,"  and  to 
obey  the  King  in  temporal  matters  (Phill.  Ecd.  Law,  i.  37). 

The  object  of  the  legislation  of  Henry  viiL,  by  which  the  royal 
supremacy  was  definitely  declared  by  statute,  was  not  to  put  the  Crown 
in  a  new  position  as  regards  the  Church,  but  in  the  words  of  the  Statute 
of  Elizabeth — "  to  restore  to  the  Crown  the  ancient  jurisdiction  autho- 
rities, superiorities,  and  preheminences  to  the  same  of  right  belonging 
or  appertaining,  and  to  put  away  and  extinguish  all  usurped  and  foreign 
powers  and  authorities  out  of  the  realm  and  the  king's  dominions  and 
countries"  (1  Eliz.  1,  preamble).  Except  for  the  dissolution  of  the 
monasteries  it  aimed  at  nothing  else  but  the  exclusion  of  the  papal 
power  and  the  establishment  of  the  supremacy  of  the  Crown,  not  over 
a  new  Church  then  created,  but  over  the  old,  then-existing  Church  of 
England  (Lord  Selborne,  Defence  of  the  Church,  27 ;  Hale,  Pleas  of  Crown, 
i.  75).  The  Act  for  the  Abolition  of  Peterspence  and  Dispensations 
{1533,  25  Hen.  viii.  21)  may  be  taken  as  a  type  of  the  spirit  governing 
all  the  ecclesiastical  legislation  of  Henry  viii,,  and  it  states  expressly 
that — "  neither  it  nor  any  thing  or  things  therein  contained  shall  be 
hereafter  interpreted  or  expounded  that  your  grace,  your  nobles  and 
subjects,  intend  by  the  same  to  decline  or  vary  from  the  congregation  of 
Christ's  Church  in  any  things  concerning  the  very  articles  of  the  Catholic 
faith  of  Christendom,  or  in  any  other  things  declared  by  holy  Scripture 
and  the  Word  of  God,  necessary  for  your  and  their  salvations,  but  only 
to  make  an  ordinance  by  policies  necessary  and  convenient  to  repress 
vice,  and  for  good  conservation  of  this  realm  in  peace,  unity,  and  tran- 
quillity from  ravin  and  spoil,  insuing  much  the  old  ancient  customs  of 
this  realm  in  that  behalf  "  (s.  19,  now  s.  13,  Eev.  Stat.).  "  The  Statutes  of 
the  Eeformation  disavowed  any  aim  at  establishing  a  system  of  principles 
novel  in  our  law  touching  ecclesiastical  jurisdiction.  They  sought  to 
provide  effectual  safeguards  on  behalf  of  the  State,  for  the  principles 
•on  which  the  British  law  had  theretofore  been  founded,  but  which  the 
exorbitant  power  of  the  clerical  estate  tempted  it,  notwithstanding 
repeated  acknowledgments,  from  time  to  time  to  question  "  (Gladstone, 
Royal  Supremacy,  258). 

The  royal  supremacy  was  formally  submitted  to  by  the  clergy  in  1532, 
when  Convocation  "acknowledged  (1)  that  the  King  was  lord  and  head 
over  the  Church,  eccledm  et  cleri  Aifiglicani  singularem  protectorerri  unicum 
■et  supremum  dominuvi  et  quantum  per  Christi  legem  licet  etiam  supremum 
caput;  and  (2)  that  Convocation  had  always  and  ought  only  to 
assemble  by  the  King's  writ ;  and  promised  in  verbo  sacerdotii  (3)  not 
to  attempt  to  allege  claim  or  put  in  use  any  new  canons  but  by  the 
King's  licence ;  nor  (4)  to  enact,  promulge,  or  execute  any  such  canons 
without  the  King's  assent ;  and  (5)  asked  the  Crown  to  appoint  a  com- 
mission of  thirty-two  persons — sixteen  clergy  and  sixteen  laymen  of 
the  two  Houses  of  Parliament — to  review  the  Church  laws  then  subsisting, 
abolish  and  annul  such  part  of  them  as  they  might  think  exceptionable, 
and  to  present  such  of  them  as  they  thought  worthy  to  stand  to  the 
Crown  for  fresh  confirmation."  An  Act  of  Parliament  (1533, 25  Hen.  viii, 
19)  confirmed  this  submission  by  enacting  that  "  the  clergy  were  not 
to  make  any  canon  except  in  convocation  with  the  King's  consent,  on 
penalty  of  fine  and  imprisonment ;  that  the  King  should  assign  thirty- 
two  persons  to  examine  the  former  canons,  and  approve  or  repeal  them 
■with  the  King's  consent ;  that  no  canons  were  to  be  enforced  contrary 


52  EOYAL  SUPREMACY 

to  the  King's  prerogative  or  the  customs,  laws,  and  statutes  of  the  realm ; 
that  there  was  to  be  no  appeal  to  Rome  or  otherwise  than  according  to 
the  Statute  of  Appeals,  1532,  24  Hen.  viii.  12 ;  but  for  lack  of  justice 
in  the  archbishops'  Courts  in  the  realm  or  the  King's  dominions,  an 
appeal  lay  to  the  King  in  Chancery,  to  be  determined  by  Commissioners 
appointed  by  the  King.  The  penalty  of  prpemunire  (as  under  16  Rich.  II. 
5)  was  affixed  to  the  offence  of  suing  appeals  to  Rome ;  appeals  from  • 
places  exempt  were  to  go  to  the  King  in  Chancery,  and  not  to  Rome, 
and  the  existing  canons  were  to  continue  in  force  till  reviewed."  A 
statute  of  the  following  year  also  confirmed  by  reference  the  submission 
of  the  clergy,  providing  that  "the  King  is  the  supreme  head  of  the 
Church  of  England,  as  recognised  by  the  clergy  of  the  realm  in  Con- 
vocation," and  also  that  "  the  Crown  shall  have  full  power  and  authority 
to  correct  all  errors,  heresies,  and  offences  whatsoever,  which  by  any 
manner  spiritual  authority  or  jurisdiction  ought  or  may  lawfully  be 
reformed,  repressed,  ordered,  redressed,  corrected,  restrained,  or  amended" 
(1534,  26  Hen.  viii.  1).  This  statute  was,  however,  repealed  by  an  Act 
of  Philip  and  Mary  (1  &  2  Phil.  &  Mary,  8) ;  and  this  was  in  its  turn 
repealed  by  an  Act  of  Elizabeth  (1  Eliz.  1),  which  revived  the  submis- 
sion of  clergy  statute,  and  enacted  in  place  of  the  last-mentioned  statute 
above — "that  all  foreign  power  and  authority,  spiritual  and  temporal, 
should  be  extinguished  (s.  16,  now  7  in  Revised  Statutes),  and  that  such 
jurisdictions,  privileges,  superiorities,  and  pre-eminences,  spiritual  and 
ecclesiastical,  as  by  any  spiritual  or  ecclesiastical  power  or  authority 
hath  heretofore  been  or  may  lawfully  be  exercised  or  used  for  visitation 
of  the  ecclesiastical  state  and  persons,  and  for  reformation,  order,  and 
correction  of  the  same,  and  of  all  manner  of  errors,  heresies,  schisms, 
abuses,  offences,  contempts,  and  enormities,  shall  for  ever  by  authority 
of  this  present  Parliament  be  united  and  annexed  to  the  Imperial  Crown 
of  this  realm  (s.  17,  now  8  of  Revised  Statutes) ;  that  the  Queen  might 
assign  commissioners  to  exercise  ecclesiastical  jurisdiction  (s.  18, 
repealed  in  1640;  16  Car.  i.  c.  11,  s.  3;  and  13  Car.  ii.  stat.  1,  c.  12); 
and  that  all  spiritual  and  temporal  officers  should  take  the  oath  of  the 
Queen's  supremacy,  namely — '  I,  A.  B.,  do  utterly  testify  and  declare  in 
my  conscience  that  the  Queen's  Highness  is  the  only  supreme  governor 
of  this  realm,  and  of  all  other  Her  Highness's  dominions  and  countries,. 
as  well  in  all  spiritual  and  ecclesiastical  things  or  causes  as  temporal ' 
(s.  19,  repealed  by  1  Will.  &  Mary,  8,  s.  12)." 

This  last-mentioned  statute  substituted  in  the  supremacy  oath  a 
mere  repudiation  of  papal  supremacy  (s.  12),  and  this  was  continued  by 
21  &  22  Vict.  c.  48,  s.  1.  The  present  oath  of  allegiance  (under  31  &  32 
Vict.  c.  72)  is — "  I,  A.  B.,  do  swear  that  I  will  be  faithful  and  bear  true 
allegiance  to  His  Majesty,  King  Edward,  his  heirs  and  successors,, 
according  to  law.  So  help  me  God ; "  and  this  must  be  taken  by  every 
clergyman  prior  to  ordination  or  institution,  and  every  bishop  or  arch- 
bishop before  confirmation  (28  &  29  Vict.  c.  122;  Phillimore,  IJcd.  Laiv, 
i.  40). 

The  meaning  of  the  supremacy  oath  was  declared  by  admonition  in 
the  royal  injunctions  of  1559,  to  be  that— "the  Queen  neither  did  nor 
ever  would  challenge  any  authority  other  than  was  challenged  and  lately 
used  by  the  Kings,  her  father  and  brother,  which  is  and  was  of  ancient 
time  due  to  the  Imperial  Crown  of  this  realm,  that  is,  that  the  Queen 
should  have  sovereignty  and  rule  over  all  manner  of  persons  of  what 
estate,  ecclesiastical  or  temporal,  so  as  no  other  foreign  Power  should 


KOYALTIES  53 

have  any  authority  over  them ; "  and  a  later  statute  (5  Eliz.  1,  c.  1,  s.  14) 
refers  to  this  admonition  as  fixing  the  legal  construction  of  the  oath,  and 
limiting  the  obligation  contracted  by  it.  The  royal  supremacy  is  also 
laid  down  in  the  canons  of  the  Church  (1603,  1,  r.  2),  and  the  Thirty- 
nine  Articles  (art.  37),  agreed  to  in  1562. 

The  royal  supremacy  is  again  asserted  in  the  manner  of  election  of 
bishops  fixed  by  the  legislation  of  Henry  viii.,  in  which  the  old  pro- 
cedure was  followed  as  closely  as  possible,  except  that  the  papal  juris- 
diction was  taken  away ;  and  express  provision  was  made  for  excluding 
any  reference  to  the  Bishop  of  Kome  in  such  election.  See,  further. 
Conge  d'Eliee;  Dean  and  Chaptek;  Pr^munire;  Supremacy, 
Oath  of. 

Another  point  in  which  the  royal  supremacy  was  also  asserted  was 
the  question  of  appeals  in  ecclesiastical  matters  (see  above),  dealt  with 
in  the  Statute  of  Appeals,  1532,  24  Hen.  viii.  12,  and  the  Act  of  1533 
(25  Hen,  viii.  19),  the  effect  of  which  was  to  give  an  appeal  from  the 
archdeacon  to  the  bishop,  from  the  bishop  to  the  archbishop,  and  "  for 
lack  of  justice  in  the  archbishop's  Courts,"  from  the  archbishop  to  the 
King  in  Chancery,  or  the  Court  of  Delegates,  whose  power  was  trans- 
ferred to  the  Privy  Council  in  1832  (2  &  3  Will.  iv.  92 ;  3  &  4  Will.  iv. 
41),  and  to  put  an  end  to  any  appeals  being  allowed  to  Eome.  These 
provisions  correspond  very  closely  with  the  old  custom  declared  in  the 
Constitutions  of  Clarendon  (see  above) ;  and  the  procedure  is  nearly  the 
same  as  that  which  was  in  force  before  the  Eeformation  with  regard  to 
free  chapels  exempt  from  visitation  by  the  ordinary,  and  subject  to 
visitation  by  the  chancellor  with  an  appeal  to  the  King.  This  appellate 
jurisdiction  of  the  Crown  did  not,  however,  historically  flow  out  of  the 
doctrine  of  the  supremacy,  for  the  statute  declaring  the  King's  headship 
and  annexing  all  lawful  corrective  ecclesiastical  jurisdiction  to  the  Crown 
did  not  pass  until  1534, 

[Authorities. — Gladstone,  Gleanings,  vol,  v.,  "Koyal  Supremacy,"  1850 ; 
Lord  Selborne,  Defence  of  the  Church,  1888 ;  Phillimore,  Uccl.  Law,  2nd  ed., 
1895.] 


Royalties. — In  its  primary  and  natural  sense  this  term  denotes 
those  rights  of  the  Sovereign  which  belong  to  him  jure  coronm ;  such  as 
his  right  to  gold  and  silver  mines,  waifs,  estrays,  etc.  As  used  in  sec. 
109  of  the  British  North  America  Act,  1867,  the  term  comprehends  all 
revenues  arising  from  the  prerogative  rights  of  the  Crown  in  connection 
with  "  lands,"  "  mines,"  and  "  minerals  "  (A.-G.  of  Ontario  v.  Mercer,  1883, 
3  App,  Cas,  767,  777  ;  A.-G.  of  British  Columbia  v,  A.-G.  of  Canada^ 
1889,  14  App.  Cas,  299).  See  the  subject  of  prerogative  treated  under 
title  Prerogative,  and  A.-G.  v,  British  Museum  {Trustees  of),  [1903] 
2  Ch.  598. 

The  term  is  also  used  in  mining  grants  and  leases  where  it  signifies 
that  part  of  the  reddendum  which  is  variable,  and  depends  upon  the 
quantity  of  minerals  gotten  {A.-G.  of  Ontario  v.  Mercer,  supra,  777).  In 
a  similar  sense  the  word  is  used  in  connection  with  patents  {q.v.),  and 
copyrights  {q.v.),  it  being  a  common  arrangement  for  a  person  who 
obtains  a  licence  to  manufacture  a  patented  article  to  pay  to  the 
patentee  a  royalty  or  fixed  sum  in  respect  of  each  article  manufactured, 
and  for  the  publisher  of  a  work  to  pay  the  author  a  royalty  in  respect  of 
each  copy  of  the  work  sold. 


54  KOYAL  WILLS 

Royal  Wills. — It  was  resolved  in  Parliament  in  the  16  Eieh.  ii. 
that  the  King,  his  heirs  and  successors,  might  lawfully  make  their  testa- 
ments. In  some  later  cases  parliamentary  authority  has  been  given  to 
royal  wills ;  in  others  not.  The  executors  of  Henry  iv.  were  confirmed 
in  their  office  by  letters  patent  of  Henry  v.;  those  of  Henry  v.  by 
Parliament.  The  largest  testamentary  powers  ever  conferred  on  an 
English  king  were  given  to  Henry  viii.  by  25  Hen.  viii.  c.  7,  empower- 
ing him  to  limit  and  appoint  the  succession  to  the  Crown  by  will,  in 
default  of  children  by  Jane  Seymour  or  any  future  wife. 

By  39  &  40  Geo.  ill.  c.  88  the  King  and  his  successor  may  devise  or 
bequeath  their  private  property.  The  provisions  of  that  Act  restricting 
alienation  of  Crown  lands  do  not  apply  to  lands  purchased  by  the 
Sovereign  out  of  the  privy  purse,  etc.,  or  acquired  by  gift,  devise,  or 
descent.     By  sec.  5  of  the  25  &  26  Vict.  c.  37,  it  is  provided  that — 

"  The  private  estates  of  Her  Majesty,  her  heirs  or  successors,  situate 
or  arising  in  any  part  of  Her  Majesty's  dominions  (except  Scotland) 
may  be  disposed  of  by  Her  Majesty,  etc.,  in  manner  provided  by  sec.  4 
of  39  &  40  Geo.  iii.  c.  88 ;  provided  always  that  a  will  or  other  testa- 
mentary disposition  by  Her  Majesty,  etc.,  of  or  concerning  any  such 
private  estates,  shall  not  require  publication,  and  every  such  will,  etc., 
shall  be  valid  and  effectual,  if  signed  by  the  testator  or  testatrix,  or  by 
some  other  person  in  his  or  her  presence,  and  by  his  or  her  direction, 
in  the  presence  of  two  witnesses ;  provided  also  that  every  will,  etc.,  of 
any  such  private  estates,  etc.,  shall  be  construed  with  reference  to  the 
property  comprised  in  such  will,  etc.,  to  speak  and  take  effect  as  if  it 
had  been  executed  immediately  before  the  death  of  the  testator  or 
testatrix,  unless  a  contrary  intention  shall  appear  by  the  will." 

Sec.  6  enacts  with  respect  to  the  disposition  of  private  estates  of  the 
Sovereign  in  Scotland  as  follows  : — 

"  The  private  estates  of  Her  Majesty,  etc.,  situate  or  arising  in  Scot- 
land, may  be  disposed  of  by  Her  Majesty,  etc.,  by  disposition  or  convey- 
ance, eitlier  special  or  general,  granted  either  mortis  causd  or  inter  vivos  ; 
and  all  dispositions,  conveyances,  deeds  of  appointment,  commissions, 
powers  of  attorney,  wills,  deeds  of  settlement,  and  other  deeds  or  instru- 
ments to  be  made  or  granted  by  Her  Majesty,  etc.,  of  or  relating  to  her 
private  estates  in  Scotland,  shall  be  valid  and  effectual,  although  not 
executed  according  to  the  forms  of  the  law  of  Scotland,  if  the  same  shall 
be  under  the  Sign  Manual  attested  by  two  or  more  witnesses;  and 
every  such  disposition  or  conveyance,  if  granted  mortis  causd,  shall  be 
valid  and  effectual,  whether  the  same  shall  be  under  the  Sign  Manual, 
or  shall  be  signed  by  some  other  person  in  the  presence  of  the  grantor, 
and  by  his  or  her  direction  in  the  presence  of  two  or  more  witnesses, 
who  shall  attest  the  same." 

No  Court  has  jurisdiction  to  grant  probate  of  the  will  of  a  Sovereign. 

Rubbish. — See  Eefuse,  Eemoval  of. 

Rubric  (in  Ecclesiastical  Law). — A  rule  or  order  in 

a  service  book  prescribing  the  manner  in  which  some  portion  of  divine 
service  is  to  be  performed,  so  called  from  having  formerly  been  printed 
in  red  (rubricus)  type,  but  in  the  Book  of  Common  Prayer  printed  in 
italics.  The  rubrics  are  in  all  respects  part  of  the  Book  of  Common 
Prayer,  and  equally  with  its  other  portions  have  the  authority  of  the 
Act  of  Uniformity.     It  has,  however,  been  considered  by  some  that 


EULE  OF  THE  EOAD  55 

rubrics  with  respect  to  decorations  and  furniture  of  the  Church  are  not 
exhaustive,  and  presuppose  famiharity  with  previously  existing  usage 
(see  Martin  v.  MackonocMe,  1867,  L.  R.  2  Ad.  &  Ec.  116).  See  Orna- 
ments EUBRIC. 

Rubric  of  Statute. — The  rubric  of  a  statute  is  its  title, 
which  was  anciently  written  in  red  letters  (see  Jacob's  Law  Dictionary)- 

Rule;  Rule  nisi. — An  order  made  by  the  Court  on  motion 
(see  Motion)  requiring  a  person  to  show  cause  why  he  should  not  do 
some  particular  act,  or  commanding  the  performance  of  the  particular 
act  forthwith.  When  the  rule  is  to  show  cause,  it  is  called  a  rule  nisi, 
which  is  served  on  the  opposite  party,  and  when  it  comes  on  for  hearing 
the  Court,  having  heard  counsel,  discharges  the  rule  or  makes  it  absolute 
(3  Steph.  Com.,  628).  When  it  directs  the  performance  of  the  act  forth- 
with, it  is  called  a  rule  absolute.  The  most  usual  matters  in  which 
rules  are  obtained  are  for  the  issue  of  such  writs  as  certiorari  (q.v.), 
habeas  corpus  (q.v.),  mandamus  (q.v.),  and  quo  warranto  (q.v.),  under  which 
articles  the  procedure  is  dealt  with.  Since  the  Judicature  Acts,  pro- 
ceeding by  motions  for  rules  has  been  confined  to  these  and  certain 
other  matters  of  a  somewhat  similar  nature;  Order  52,  r.  2  (E.  S.  C, 
1883),  expressly  provides  that  no  motion  or  application  for  a  rule  nisi 
or  order  to  show  cause  shall  be  made  in  any  action,  or  to  set  aside, 
remit,  or  enforce,  an  award,  or  for  attachment,  or  to  answer  matters  in 
an  affidavit,  or  to  strike  ofif  the  rolls,  or  against  a  sheriff  to  pay  money 
levied  under  an  execution.  This  rule,  however,  must  be  read  in  con- 
junction with  the  next  rule.  Order  52,  r.  3,  defining  where  notice  of 
motion  must  be  given,  which  contains  the  words  "  except  where,  not- 
withstanding rule  2,  a  motion  or  application  may  be  made  to  show  cause 
only."  Apart  from  their  context  these  words  show  that  though  the 
term  "  rule  nisi "  was  no  longer  to  be  used,  orders  nisi  might  still  in 
some  cases  be  made  ex  parte.  Thus  in  garnishee  proceedings  (see 
Execution,  Vol.  V.  p.  506)  an  order  attaching  a  debt  is  made  ex  parte, 
and  is  in  fact  an  order  nisi  calling  upon  the  garnishee  to  show  cause, 
but  binding  the  debt  meanwhile.  So  also  in  the  case  of  a  charging 
order  on  stocks  or  shares  under  Order  46  (see  Execution,  Vol.  V.  p.  516), 
the  order  first  made  ex  parte  is  an  order  nisi,  and  not  only  binds  the 
stock  in  the  hands  of  the  company,  but  when  it  is  made  absolute  be- 
comes operative  from  its  original  date. 

And,  moreover.  Order  52,  r.  2,  only  appears,  so  far  as  it  does  apply, 
to  a  rule  nisi  "in  any  action."  Where  the  application  is  not  in  an 
action,  as  in  the  case  of  an  application  for  the  assignment  of  an  adminis- 
tration bond  for  the  purpose  of  its  being  sued  upon,  the  old  procedure 
by  rule  nisi  remains  (In  the  Goods  of  Cartwright,  1876,  24  W.  E.  214). 
So,  also,  in  the  case  of  an  application  to  vacate  the  registration  as  a  lis 
pendens  of  an  action  which  has  been  dismissed  (Pooley  v.  Bosanquet,  1877, 
7  Ch.  D.  541). 

Rule  of  the  Road. — The  customary  rules  of  driving  are — 
(1)  That  in  meeting,  each  party  shall  bear  or  keep  to  the  left ;  (2)  that 
in  passing  the  foremost  person  bearing  to  the  left,  the  other  shall  pass 
on  the  off  side ;  and  (3)  that  in  crossing,  the  driver  coming  transverse 
shall  bear  to  the  left  hand,  so  as  to  be  behind  the  other  carriage 
(2  Steph.  N.  P.,  984).    These  rules  are  judicially  recognised  (1  Taylor  on 


56  EULE  OF  THE  EOAD 

Evidence,  10th  ed.,  s.  5,  p.  6) ;  and  constitute  what  is  called  the  law  or 
rule  of  the  road.  On  the  Continent  and  in  the  United  States  the  rule 
of  the  road  is  contrary  to  that  prevailing  in  this  country.  If  there  be 
no  peculiar  circumstance  to  the  contrary,  it  is  the  duty  of  each  party  to 
keep  the  regular  side  of  the  road.  A  person  riding  or  driving  •  is  not, 
however,  bound  to  keep  his  side ;  but  if  he  does  not,  he  must  use  more 
care,  and  keep  a  better  look-out,  to  avoid  collision,  than  would  be  neces- 
sary if  he  were  on  the  proper  side  of  the  road  {Pluckwell  v.  Wilson, 
1832,  5  Car.  &  P.  375 ;  see  also  Wordsworth  v.  Willan,  1805,  Esp.  273). 
In  driving  at  night  the  rule  ought  to  be  strictly  adhered  to,  and  never 
departed  from,  as  it  is  the  only  mode  by  which  accidents  can  be  avoided 
{Cruden  v.  Fentham,  1799,  2  Esp.  684,  per  Lord  Kenyon,  C.J.).  A 
person  driving  on  the  wrong  side  of  the  road  in  the  dark  is  therefore 
liable  if  he  accidentally  injures  another  carriage  or  person  {Leame  v. 
Bray,  1803,  3  East,  593  ;  see  also  Handayside  v.  Wilson,  1828,  3  Car. 
&  P.  530 ;  33  E.  E.  695). 

Generally  speaking,  however,  non-observance  of  the  rule  of  the  road 
would,  at  the  utmost,  appear  to  be  only  p'imd  facie  evidence  of  negli- 
gence ;  and  circumstances  may  arise  in  which  a  person  blindly  or  wilfully 
persisting  in  adhering  to  it  will  preclude  himself  from  recovering  damages 
for  any  injury  he  may  sustain  in  a  collision  whilst  so  doing,  or  render 
himself  liable  for  any  injury  he  may  cause  to  another.  If  the  driver  of 
a  carriage  may  adopt  either  of  two  courses,  one  of  which  is  safe  and  the 
other  hazardous,  and  he  elects  the  latter,  the  owner  is  responsible  for 
the  mischief  which  ensues ;  and  he  cannot  in  such  case  insist  upon  the 
fact  that  he  kept  his  own  side  of  the  road  {May hew  v.  Boyce,  1816, 
1  Stark.  N.  P.  423 ;  18  E.  E.  796).  If,  for  instance,  a  person  driving  a 
carriage  sees  another  carriage  coming  down  on  the  wrong  side  of  the 
road,  he  must  not  let  himself  be  run  down,  but  if  he  has  time  and  room, 
must  get  out  of  the  way ;  for  if  he  does  not,  he  cannot  bring  an  action 
and  recover  damages  {Crudeny.  Fentham,  1799,  2  Esp.  684;  see  also  The 
Commerce,  1850,  3  Eob.  W.  287).  Neither  will  the  fact  of  a  person 
being  on  his  wrong  side  justify  another  in  doing  a  wanton  injury. 
Thus  where  it  appeared  that  the  defendant's  chaise  crossed  the  road 
to  get  to  its  proper  side  in  coming  from  another  road,  and  in  so 
doing  injured  the  plaintiffs  horse,  which  was  being  ridden  by  his 
servant  on  the  wrong  side  of  the  road.  Lord  Ellenborough,  C.J.,  said 
that  the  fact  of  the  person  being  on  the  wrong  side  of  the  road  was 
not  sufficient  to  discharge  the  defendant ;  for  though  a  person  miglit  be 
on  his  wrong  side  of  the  road,  if  the  road  was  of  sufficient  breadth,  so 
that  there  was  full  and  ample  room  for  the  party  to  pass,  he  was  bound 
to  take  that  course  which  would  carry  him  clear  of  the  person  who  was 
on  his  wrong  side,  and  that  if  an  injury  happened  by  running  against 
such  a  person  he  would  be  answerable  {Clay  v.  Wood,  1803,  5  Esp.  42 ; 
8  E.  E.  827 ;  see  also  Cruden  v.  Fentham,  ubi  supra).  In  another  similar 
case  it  was  held  that  whatever  might  be  the  law  of  the  road,  it  was  not 
to  be  considered  inflexible,  and  imperatively  governing  cases  where 
negligence  is  the  question.  In  the  crowded  streets  of  the  Metropolis, 
situations  and  circumstances  may  frequently  arise  where  a  deviation 
from  it  will  not  only  be  justifiable,  but  absolutely  necessary.  Of  this 
the  jury  are  the  best  judges ;  and  independently  of  the  law  of  the  road, 
it  is  their  province  to  determine  from  whose  negligence  the  accident  has 
arisen  {Wayde  v.  Carr,  1823,  2  Dow.  &  Ey.  K.  B.  256;  25  E.  E.  554 
Lloijd  V.   Oglehy,  1859,  5  C.  B.  N.  S.   667).     On  the  same  principle* 


KULE  OF  THE  KOAD  57 

apparently,  it  has  been  laid  down  in  the  United  States  that  a  traveller 
on  foot  or  on  horseback  must  give  way  to,  and,  if  necessary,  cross  the 
road  for  a  vehicle  with  a  heavy  load  {Beach  v.  Parmeter,  1854,  23  Penn. 
St.  196) ;  and  that  a  lightly-loaded  vehicle  must,  in  like  manner,  give 
way  to  a  heavily-loaded  one  {Grier  v.  Sampson,  1856,  27  Penn.  St.  183). 

Though  the  rule  of  the  road  is  not  to  be  adhered  to,  if  by  departing 
from  it  an  injury  can  be  avoided,  and  there  is  clear  space  enough  to  get 
out  of  the  way,  yet  in  cases  where  parties  meet  on  a  sudden,  and  an 
injury  results,  the  party  on  the  wrong  side  is  answerable,  unless  it 
clearly  appears  that  the  party  on  the  right  side  had  ample  means  and 
opportunity  to  prevent  it  {Chaplin  v.  Hawes,  1828,  3  Car.  &  P.  554; 
33  K.  E.  705). 

Saddle  Horses. — The  rule  of  the  road  applies  to  saddle  horses  as  well 
as  to  carriages ;  and  if  a  carriage  and  a  horse  are  to  pass,  the  carriage 
must  keep  its  proper  side,  and  so  must  the  horse.  But  if  the  driver  of 
a  carriage  is  on  his  proper  side,  and  sees  a  horse  coming  furiously  on  its 
wrong  side  of  the  road,  it  is  the  duty  of  the  driver  to  give  way  and  avoid 
an  accident,  although  in  so  doing  he  goes  a  little  way  on  what  would 
otherwise  be  the  wrong  side  of  the  road  {Turley  v.  Thomas,  1837,  8  Car. 
&  P.  103 ;  56  K.  R.  839). 

Tram  Cars. — The  introduction  of  tramways  has  been  said  to  have 
considerably  modified  the  rule  of  the  road  as  above  stated.  This  point 
does  not  appear  to  have  been  raised  in  any  English  case,  but  in  Scotland, 
Inglis,  L.P.,  delivering  judgment  in  Jardine  v.  Stonefidd  Laundry  Co., 
1887,  14  Rettie,  839,  said :  "  There  is  one  rule  of  the  road  which  has 
been  very  much  altered  by  the  appearance  of  these  new  vehicles,  namely, 
that  one  carriage  overtaking  another  is  bound  to  pass  it  on  the  right- 
hand  side.  The  new  rule  requires  that  when  a  carriage  is  coming  up 
behind  a  tramway  car,  and  the  car  stops,  the  driver  of  the  other  vehicle 
shall  pass  upon  the  left-hand  side.  That  is  the  opposite  of  the  old  rule. 
The  new  rule  was  introduced  from  considerations  of  convenience  and 
safety ;  and  the  reason  is  very  obvious,  because  tramway  cars  pass  upon 
two  lines  of  tramways,  one  in  one  direction,  and  another  in  the  other. 
If  vehicles  were  to  pass  a  car  on  the  right-hand  side,  there  would  be 
very  great  danger  of  their  coming  into  collision  with  another  car  coming 
the  opposite  way."  In  the  United  States  it  has  been  held  that  the  rule 
of  the  road  has  no  application  to  the  meeting  of  ordinary  vehicles  with 
tram  cars,  the  ground  for  this  decision  being,  that  the  latter  cannot  turn 
to  that  side  which  appears,  under  the  circumstances,  to  be  the  safest, 
without  regard  to  the  usual  rule ;  and  the  fact  that  either  was  on  the 
left  of  the  road  at  the  time  of  a  collision  is  no  evidence  of  negligence 
{Hegan  v.  Eighth  Avenue  Rly.  Co.,  1857,  15  K  Y.  380).  And  for  the 
same  reason,  that  when  a  collision  occurs  between  an  ordinary  vehicle 
and  a  tram  car  travelling  side  by  side,  the  presumption  is  that  the 
driver  of  the  vehicle  was  negligent  {Suydam  v.  Ch-and  Street  Rly.  Co., 
1864,  41  Barb.  375). 

Foot  Passengers. — It  has  been  held  that  a  foot  passenger,  although  he 
may  be  infirm,  has  a  right  to  walk  in  the  carriage  way  {Boss  v.  Litton, 
1832,  5  Car.  &  P.  407,  per  Lord  Denman,  C.J.).  Without  going  that 
length,  it  is  quite  clear  that  a  foot  passenger  has  a  right  to  cross,  and 
that  persons  driving  carriages  along  the  road  are  liable  if  they  do  not 
take  care  so  as  to  avoid  driving  against  the  foot  passengers  who  are 
crossing  the  road.  But  the  rule  of  the  road  does  not  apply  with  respect 
to  foot  passengers ;  and  as  regards  them  carriages  may  go  on  whichever 


58  EULEES,  PEINCES,  AND  PEOPLES 

side  of  the  road  they  please  {Cotteril  v.  Starkey,  1839,  8  Car.  &  P.  694, 
per  Patteson,  J.     See  also  Lloyd  v.  Oglehy,  1859,  5  C.  B.  N.  S.  667). 

The  rule  of  the  road  has  been  to  a  certain  extent  adopted  by  statute. 
Thus  by  the  Highways  Act,  1835,  5  &  6  Will.  iv.  c.  50,  s.  78 :  "  If  the 
driver  of  any  waggon,  cart,  or  other  carriage  whatsoever,  or  any  horses, 
mules,  or  other  beasts  of  draught  or  burthen,  meeting  any  other  waggon, 
cart,  or  other  carriage,  or  horses,  mules,  or  other  beasts  of  burthen,  shall 
not  keep  his  waggon,  cart,  or  carriage,  or  horses,  mules,  or  other  beasts 
of  burthen  on  the  left  or  near  side  of  the  road ;  or  if  any  person  .  .  . 
shall  not  keep  his  waggon,  cart,  or  other  carriage,  or  horses,  mules,  or 
other  beasts  of  burthen,  on  the  left  or  near  side  of  the  road  for  the 
purpose  of  allowing  such  passage  "  {i.e.  the  free  passage  of  any  person, 
waggon,  etc.),  he  shall,  "  in  addition  to  any  civil  action,"  forfeit  any  sum 
not  exceeding  five  pounds  if  he  is  not  the  owner,  or  ten  pounds  if  he  is 
the  owner,  of  the  waggon,  cart,  etc.  Further,  by  the  same  section,  a 
driver  offending  under  this  section  may  be  arrested,  without  a  warrant, 
by  any  person  who  sees  the  offence  committed.  This  is  a  great  exten- 
sion of  the  common  law  powers  of  arrest.  See  Hatton  v.  Treehy,  [1897] 
2  Q.  B.  452. 

See  Negligent  Driving  ;  Cycling  ;  and  Motor  Cars. 

[Authority. — Oliphant  on  Horses,  5th  ed.,  by  C.  E.  Lloyd.] 

Rulers,  Princes,  and  Peoples. — As  to  this  exemption 
clause  in  bills  of  lading,  see  Princes,  Eulers,  and  Peoples. 

Rules;  Rul  es  of  Co  U  rt .  — Definition. — In  every  Act  passed 
after  the  1st  January  1890,  the  expression  "Eules  of  Court,"  when 
used  in  relation  to  any  Court,  means  rules  made  by  the  authority 
having  for  the  time  being  power  to  make  rules  or  orders  regulating  the 
practice  or  procedure  of  such  Court,  and,  as  regards  Scotland,  includes 
Acts  of  adjournal  and  Acts  of  sederunt  (Interpretation  Act,  1889,  52 
&  53  Vict.  c.  63,  s.  14). 

Rules  of  the  Supreme  Court. — Prior  to  the  Judicature  Acts,  the 
practice  of  the  Court  of  Chancery  was  chiefly  regulated  by  the  Chancery 
Consolidated  General  Orders  of  1860,  which  consisted  of  a  series  of 
orders,  each  of  which  was  divided  into  rules  (see  Chancery  Orders). 
In  the  Courts  of  Common  Law,  on  the  other  hand,  the  rules  in  force 
were  known  as  Regulce  Generates,  the  principal  of  which  were  those 
of  Hilary  and  Trinity  Terms,  1853,  passed  under  the  authority  of  sec. 
223  of  the  Common  Law  Procedure  Act,  1852,  15  &  16  Vict.  c.  76.  In 
addition  to  such  rules  governing  the  procedure  in  the  Chancery  and 
Common  Law  Courts  respectively,  there  were  also  in  force  rules  and 
orders  of  Court  with  regard  to  the  practice  in  the  Courts  of  Probate, 
Divorce,  Admiralty,  and  Bankruptcy. 

The  several  Judicature  Acts  contain  numerous  provisions  with 
regard  to  rules  for  the  High  Court.  It  was  only  by  degrees  that 
the  body  which  now  frames  the  rules,  and  which  is  known  as  the 
"Eule  Committee,"  has  attained  its  present  form. 

By  the  Judicature  Act,  1875,  38  &  39  Vict.  c.  77,  s.  16,  the  Eules  of 
the  Supreme  Court,  1875,  were  introduced,  power  to  annul  or  alter  such 
rules  being  conferred  on  the  authority,  by  which  new  rules  of  Court 
might  be  made  after  the  commencement  of  the  Act. 

By  sec.  17  the  Supreme  Court  was  empowered,  with  the  concurrence 
of  a  majority  of  the  judges  thereof  present  at  any  meeting  for  that  pur- 


RULES;  RULES  OF  COURT  59 

pose  (of  which  majority  the  Lord  Chancellor  should  be  one),  to  make 
rules  of  Court  for  carrying  into  effect  the  Judicature  Acts  of  1873  and 
1875,  and  in  particular  for  all  or  any  of  the  following  matters : — 

(1)  For  regulating  the  sittings  of  the  High  Court  of  Justice  and  the 
Court  of  Appeal,  and  of  any  Divisional  or  other  Courts  thereof,  and  of 
the  judges  of  the  said  High  Court  sitting  in  Chambers.  (2)  For  regu- 
lating the  pleading,  practice,  and  procedure  in  the  High  Court  of  Justice 
and  Court  of  Appeal.  (3)  Generally,  for  regulating  any  matters  relating 
to  the  practice  and  procedure  of  the  said  Courts  respectively,  or  to  the 
duties  of  the  officers  thereof,  or  of  the  Supreme  Court,  or  to  the  costs 
of  proceedings  therein,  with  power  to  alter  and  annul  any  rules  for  the 
time  being  in  force. 

The  above  provisions  were  in  substitution  for  sees.  68,  69,  74  of  the 
Judicature  Act,  1873. 

By  the  Appellate  Jurisdiction  Act,  1876,  39  &  40  Vict.  c.  59,  s.  17, 
the  power  of  making  Rules  of  Court  was  vested  in  a  committee  of 
judges  constituted  as  therein  specified. 

By  the  Judicature  Act,  1881,  44  &  45  Vict.  c.  68,  the  constitution 
of  the  Rule  Committee  was  altered,  and  the  power  to  make  rules  was 
intrusted  to  any  five  or  more  of  the  following  persons,  of  whom  the 
Lord  Chancellor  must  be  one,  namely,  the  Lord  Chancellor,  the  Lord 
Chief  Justice  of  England,  the  Master  of  the  Rolls,  the  President  of  the 
Probate,  Divorce,  and  Admiralty  Division,  and  four  other  judges  of  the 
Supreme  Court,  to  be  from  time  to  time  appointed  for  the  purpose  by 
the  Lord  Chancellor. 

Finally,  by  the  Judicature  Act,  1894,  57  &  58  Vict.  c.  16,  the  consti- 
tution of  the  Rule  Committee  was  settled  in  its  present  shape,  for  by 
sec.  4  of  that  Act  it  was  provided  that  the  Committee  should  include  the 
president  of  the  Incorporated  Law  Society  for  the  time  being,  and  two 
persons  (of  whom  one  should  be  a  practising  barrister)  to  be  appointed 
by  the  Lord  Chancellor. 

Under  the  powers  conferred  on  the  Rule  Committee  of  judges,  the 
Rules  of  the  Supreme  Court,  1883,  were  passed,  and  came  into  operation 
on  the  24th  October  1883.  This  code,  which,  in  addition  to  numerous 
new  provisions,  incorporated  much  of  the  old  procedure,  particularly  as 
regards  the  business  of  the  Chancery  Division,  now  governs  the  practice 
of  the  High  Court  in  the  Chancery  and  King's  Bench  Divisions,  and  on 
the  Admiralty  side  of  the  Probate,  Divorce,  and  Admiralty  Division,  the 
rules  previously  in  force  being  repealed  by  Appendix  0.  From  time  to 
time,  since  the  year  1883,  new  rules  have  appeared,  which  are  incor- 
porated into  the  code  of  1883.  Valuable  as  these  provisions  have 
proved  in  simplifying  the  practice  and  procedure  of  the  Courts,  it 
cannot  be  denied  that  there  is  room  for  improvement.  Inconsistencies, 
anachronisms,  incongruities  are  present  in  the  rules,  which  ought  to 
be  swept  away.  Nor  would  it  be  difficult  to  point  to  matters  of  more 
serious  importance  which  deserve  the  consideration  of  the  Rule  Com- 
mittee. The  present  unsatisfactory  condition  of  the  practice  with 
regard  to  the  service  of  proceedings  out  of  the  jurisdiction  may  be  cited 
as  an  instance  of  much  needed  reform.  Some  years  ago  the  task  of 
revision  was  undertaken  by  certain  of  the  judges,  with  the  assistance 
of  professional  draftsmen.  Up  to  the  present  time  no  result  has 
followed  from  their  labours.  The  hope  may  be  permitted  that  a  work 
of  so  much  public  importance  as  that  of  a  thorough  revision  of  the 
rules  may  be  seriously  undertaken. 


60  KULES;  EULES  OF  COUET 

The  powers  conferred  on  the  Eule  Committee  by  sec.  17  of  the 
Judicature  Act,  1875,  and  sec.  17  of  the  Appellate  Jurisdiction  Act, 
1876,  were,  by  sec.  22  of  the  Judicature  (Officers)  Act,  1879,  42  &  43 
Vict.  c.  78,  extended  to  making  rules  for  the  purposes  of  the  last-named 
Act,  and  also  for  the  purposes  of  any  Act  (whether  passed  before  or  after 
the  passing  of  the  Act)  which,  expressly  or  by  implication,  authorises  or 
directs  the  making  of  any  orders,  rules,  or  regulations  for  any  purpose 
for  which  Eules  of  Court  can  be  made  under  the  above-mentioned 
sections,  or  for  any  similar  purpose.  Wherever  the  concurrence  of  the 
Treasury  is  required  in  making  rules  of  Court,  no  rules  are  to  be  made 
without  that  concurrence. 

By  virtue  of  the  Statute  Law  Eevision  and  Civil  Procedure  Act, 
1881,  44  &  45  Yict.  c.  59,  s.  6,  the  Eule  Committee  is  empowered  to 
make  rules  with  regard  to  any  of  the  matters  in  respect  of  which  rules 
might  have  been  made  under  any  enactment  repealed  by  that  Act; 
and  their  powers  are  also  extended  to  all  proceedings  by  or  against  the 
Crown. 

An  important  safeguard  against  the  introduction  of  hasty  and  ill- 
considered  rules,  and  an  opportunity  for  the  critical  examination  of 
proposed  new  rules,  has  been  provided  by  the  Eules  Publication  Act, 
1893,  56  &  57  Vict.  c.  66.  By  sec.  1  it  is  enacted  that,  at  least  forty 
days  before  making  any  statutory  rules  to  which  the  section  applies 
(that  is  to  say,  such  rules  as  are  made  pursuant  to  any  Act  of  Parliament 
which  directs  them  to  be  laid  before  Parliament),  notice  of  the  proposal 
to  make  the  rules,  and  of  the  place  where  copies  of  the  draft  rules  may 
be  obtained,  shall  be  published  in  the  London  Gazette.  During  such 
period  of  forty  days,  copies  of  the  draft  rules  may  be  obtained  by  any 
public  body,  and  the  written  representations  or  suggestions  of  such 
body  to  the  rule-making  authority  are  to  be  taken  in  consideration 
by  that  authority  before  finally  settling  the  rules.  On  the  expiration 
of  the  forty  days,  the  rules  may  be  made  by  the  rule-making  authority, 
either  as  originally  drawn  or  as  amended  by  such  authority. 

In  case  of  urgency,  upon  the  certificate  of  the  rule-making  authority, 
any  rules  may  be  made  to  come  into  operation  at  once,  as  provisional 
rules,  only  to  continue  in  force  until  rules  have  been  made  in  accordance 
with  the  foregoing  provisions  of  the  Act  (2). 

As  to  rules  which  require  to  be  laid  before  Parliament,  and  which 
are  therefore  within  sec.  1  of  the  Eules  Publication  Act,  1893,  see  the 
Judicature  Act,  1875,  ss.  17,  25,  relating  to  Eules  of  the  Supreme 
Court,  and  the  Bankruptcy  Act,  1883,  46  &  47  Vict.  c.  52,  s.  127, 
relating  to  rules  in  Bankruptcy. 

"  Eules  of  Court "  under  the  Judicature  Act  include  forms  (Judicature 
Act,  1873,  s.  100). 

Construction  of  Rules. — "  The  Court  ought  not  to  give  to  the  rules  a 
pleader's  interpretation,  but  one  consistent  with  common  sense  "  (per 
Lord  Coleridge,  Mivards  y.  Zowther,  1876,  24  W.  E.  434).  "I  do  not 
think  that  practical  rules  ought  to  be  construed  according  to  mere 
grammar,  if  that  which  is  an  absurdity  from  a  business  point  of  view 
is  thereby  produced  "  (per  Lord  Esher,  M.E.,  Hannay  v.  Smurthwaite, 
[1893]  2  Q.  B.  p.  420).  "  The  orders  and  rules  under  the  Supreme  Court 
of  Judicature  Acts,  1873,  1875,  are  matters  of  procedure,  and  are  not 
intended  to  alter  the  rights  of  the  parties  "  {per  Bramwell,  L. J.,  Pellas 
V.  Nejptune  Marine  Insurance  Co.,  1879,  5  C.  P.  D.  34).  "  The  relation  of 
rules  of  practice  to  the  work  of  justice  is  intended  to  be  that  of  hand- 


EULES;  RULES  OF  COUET  61 

maid  rather  than  mistress,  and  the  Court  ought  not  to  be  so  far  bound 
and  tied  by  rules,  which  are  after  all  only  intended  as  general  rules 
of  procedure,  as  to  be  compelled  to  do  what  will  cause  injustice  in 
the  particular  case  "  {per  Collins,  M.E.,  In  re  Coles  &  Bavenshear,  [1907] 
1  K.  B.  p.  4).  The  rules  were  made  to  carry  out  the  Judicature  Act, 
1873,  not  to  extend  it.  The  rules  were  made  part  of  the  Act  of  1875, 
and  have  all  the  force  of  an  enactment,  but  they  are  to  be  read  as  parts 
of  the  earlier  statute.  Where  in  the  same  statute  are  found  clear 
enactments  as  to  jurisdiction,  and  enactments  as  to  procedure  under  that 
jurisdiction,  the  latter  must  be  construed  if  possible  so  as  to  make  them 
consistent  with  the  former,  and  not  as  to  enlarge  the  jurisdiction  (per 
Brett,  L.J,,  Longman  v,  Uast,  1877,  3  C.  P.  D.  p.  156  ;  see,  too.  In  re  Mill's 
Estate,  Ex  parte  Commissioners  of  Works,  1886,  34  Ch.  D.  p.  33  ;  Elder  v. 
Carter,  1890,  25  Q.  B.  D.  p.  201 ;  Westbury  on  Severn  Rural  Sanitary 
Authority  v.  Meredith,  1885,  30  Ch.  D.  387  ;  British  South  Africa  Co.  v. 
Companhia  de  Mogamhique,  [1893]  App.  Cas.  p.  628  ;  In  re  Fisher,  [1894] 
1  Ch.  450).  "  The  Act  of  1875  provided  in  the  16th  section  that  the  orders 
contained  in  the  schedule  should  be  considered  part  of  the  Act,  subject  to 
all  provisions  to  be  made  hereafter  ;  and  it  did  make  them  part  of  the 
Act,  and  the  orders  contained  in  that  schedule  are  as  much  part  of  the 
Act,  and  of  the  will  of  the  legislature  in  the  passing  of  the  Act,  as  any 
section  in  the  Act  itself  "  (per  Lord  Blackburn,  Gamett  v.  Bradley,  1878, 
3  App.  Cas.  p.  964).  The  rules  must  not  be  taken  as  being,  or  as 
intended  to  be,  inconsistent  with  the  provisions  of  the  Act  {In  re  Farvsitt, 
Galland  v.  Burton,  1885,  30  Ch.  D.  p.  232). 

Maintenance  of  old  Procedure. — Where  no  other  provision  is  made  by 
the  Judicature  Acts,  or  the  Eules  of  the  Supreme  Court,  the  former  pro- 
cedure and  practice  remain  in  force  (Order  72,  r.  2 ;  and  see  Judicature 
Act,  1873,  s.  23  ;  Judicature  Act,  1875,  s.  21).  As  to  the  effect  of  this 
rule,  see  Magnus  v.  National  Bank  of  Scotland,  1888,  36  W.  E.  602.  It 
was  not  intended  to  keep  on  foot  a  repealed  order,  but  the  general 
jurisdiction  and  practice  of  the  Court  (S.  C);  nor  does  it  save  any 
practice  which  depends  solely  on  an  Act  of  Parliament  which  has  been 
repealed,  or  on  a  rule  which  has  been  abrogated  {In  re  Busfield,  Whaley 
V.  Busfield,  1886,  32  Ch.  D.  p.  131).  Where  there  is  no  rule  of  practice, 
and  there  was  formerly  a  difference  in  practice  at  law,  and  in  equity, 
the  more  convenient  of  the  two  methods  will  be  followed  {Newhigging- 
hy-the-Sea  Gas  Co.  v.  Armstrong,  1879, 13  Ch.  D.  310  ;  Nurse  Y.Dumford, 
1879,  13  Ch.  D.  764 ;  Thomas  v.  Palin,  1882,  21  Ch.  D.  360). 

Prolate  and  Divorce  Rules. — By  virtue  of  sec.  18  of  the  Judicature 
Act,  1875,  the  president  of  the  Probate,  Divorce,  and  Admiralty 
Division  has,  with  regard  to  new  contentious  or  common  form  busi- 
ness in  the  Probate  Court,  the  power  of  making  rules  conferred  by 
sec.  30  of  the  Court  of  Probate  Act,  1857,  20  &  21  Vict.  c.  77;  and  as 
regards  divorce  proceedings,  the  same  section  vests  in  him  the  power  to 
make  rules  conferred  by  sec.  53  of  the  Matrimonial  Causes  Act,  1857, 
20  &  21  Vict.  c.  85. 

Bankruptcy. — The  rule-making  authority  for  rules  in  bankruptcy  is 
the  Lord  Chancellor,  with  the  concurrence  of  the  President  of  the  Board 
of  Trade. 

Cmtnty  Courts.— ^j  the  County  Courts  Act,  1888,  51  &  52  Vict. 
c.  43,  s.  164,  five  of  the  County  Court  judges  to  be  appointed  by  the 
Lord  Chancellor  are  empowered  to  frame  rules  and  orders  for  regulating 
the  practice  of  the  Courts.     Such  rules,  certified  under  the  hands  of 


62  EUM 

such  judges  or  any  three  or  more  of  them,  must  be  submitted  to  the 
Lord  Chancellor,  who  may  allow  or  disallow,  or  alter  the  same.  The 
concurrence  of  the  Eule  Committee  is  also  required.  County  Court 
Kules  do  not  require  to  be  laid  before  Parliament. 

Inferior  Courts  geiurally. — By  the  Judicature  Act,  1884,  sec.  24,  all 
rules  of  any  inferior  Courts  of  civil  jurisdiction,  made  under  any  statute 
or  charter  conferring  power  to  make  rules,  are  made  subject  to  the 
concurrence  of  the  Eule  Committee.  And  by  sec.  8  of  the  Statute  Law 
Eevision  and  Civil  Procedure  Act,  1883,  46  &  47  Vict.  c.  49,  any  of  the 
provisions  of  the  Judicature  Acts  and  the  rules  thereunder  may,  by 
Order  in  Council,  be  made  to  apply  to  any  inferior  Court. 

Supreme  Court  Funds  Rules. — Eules  for  regulating  the  procedure 
in  the  pay  office  of  the  Supreme  Court  are  made  by  the  Lord  Chan- 
cellor, with  the  concurrence  of  the  Treasury  (Court  of  Chancery  (Funds) 
Act,  1872,  35  &  36  Vict.  c.  44,  s.  18 ;  Supreme  Court  of  Judicature 
(Funds)  Act,  1883,  46  &  47  Vict.  c.  29,  s.  7). 

Rum. — The  Sale  of  Foods  and  Drugs  Act  Amendment  Act,  1879, 
s.  6,  makes  it  a  good  defence  to  prove,  in  a  prosecution  under  the  prin- 
cipal Act  of  1875,  for  the  adulteration  of  rum  and  certain  other  spirits 
by  the  admixture  of  water,  that  the  water  added  has  not  reduced  the 
spirit  more  than  twenty-five  degrees  under  proof. 

Rumania. — Area. — The  kingdom  of  Eumania  is  bounded  on  the 
north  and  north-east  by  EussiA  {q.v.),  on  the  south-east  by  the  Black 
Sea,  on  the  south  by  Bulgaria  (see  Ottoman  Empire),  and  on  the  west 
by  Servia  {q.v.)  and  Hungary  (see  Hungary  and  Austria).  The  total 
area  of  Eumania  is  50,700  square  miles,  or  as  large  as  England. 

Earlier  History. — The  present  kingdom  comprises  the  former  prin- 
cipalities of  Walachia  and  Moldavia.  From  mediaeval  times  the  two 
principalities  were  under  the  suzerainty  of  one  or  other  of  the  following 
powers — Hungary,  Poland,  Turkey,  Austria,  and  Eussia.  They  had  since 
the  16th  century  been  under  Turkish  control,  though  they  were  occupied 
for  a  brief  time  early  in  the  19  th  century  by  Eussia.     By  the  Peace  of 

1  fi 
Bucharest,  May  ^,  1812  (Hertslet's  State  Papers,  vol.  i.  p.  908),  they 

were  restored  to  Turkey,  but  Eussia  retained  Bessarabia.  In  1848  a 
revolution  took  place  in  the  principalities,  but  it  was  subdued  and  a 
joint  Eusso-Turkish  dictatorship  established.  Six  years  later  the 
Eussians  were  induced  to  withdraw  by  Austria,  who  then  occupied  the 
principalities.  By  Articles  22-27  of  the  Treaty  of  Paris,  1856  {ihid., 
vol.  xlvi.  p.  8),  the  principalities  were  placed  under  the  guarantee  of  the 
contracting  Powers,  whilst  Turkey  retained  the  suzerainty  and  a  portion 
of  Bessarabia  was  restored  to  Moldavia.  In  1861  the  principalities  were 
united  for  the  first  time  under  one  Prince  under  the  name  of  Eumania. 
By  the  Treaty  of  Berlin,  1878  {ihid.,  vol.  Ixix.  p.  749),  Eussia  received 
back  the  portion  of  Bessarabia  that  she  surrendered  in  1856,  and  gave 
Eumania  in  exchange  the  islands  of  the  Danubian  delta  and  the  pro- 
vince of  Dobruja,  which  had  been  ceded  by  Turkey,  and  confirmed  the 
independence  of  Eumania  which  had  been  proclaimed  on  June  3,  1877 
{ibid.,  vol.  Ixviii.  p.  871).  By  Proclamation  of  March  26,  1881,  Prince 
Charles  became  King  Charles  i.,  and  Eumania  was  converted  into  a 
kingdom. 

Constitution. — The  Constitution  bears  date  June  30,  1866  (Hertslet's 


KUNAWAY  HORSE  63 

State  Papers,  vol.  Ivii.  p.  263),  but  was  modified  in  June  1884  {ibid., 
vol.  Ixxv.  p.  1105)  and  subsequently.  The  executive  authority  is 
vested  in  a  council  of  8  ministers,  presided  over  by  the  Prime  Minister. 
The  legislative  power  is  in  a  Parliament  of  2  Chambers,  a  Senate  and  a 
Chamber  of  Deputies.  The  Senate  consists  of  120  members,  elected  for 
8  years,  of  whom  2  represent  the  Universities  and  8  the  bishops.  There 
are  property  and  age  qualifications,  and  Senators,  as  well  as  Deputies,  are 
paid  and  travel  free  on  State  railways.  The  electorate  for  the  Senate 
must  have  certain  property  qualifications,  and  belong  to  2  electoral 
colleges.  The  Chamber  of  Deputies  consists  of  183  members  of  25 
years  of  age,  elected  for  4  years,  by  electors  belonging  to  3  electoral 
colleges,  paying  taxes  and  being  of  full  age.  The  mode  of  election  is 
partly  direct  and  partly  indirect.  The  inhabitants  of  the  province  of 
Dobruja  do  not  possess  the  franchise. 

For  purposes  of  local  administration,  Rumania  is  divided  into  32 
districts,  of  which  Moldavia  has  13,  Wallachia  17,  and  Dobruja  2. 
Each  district  is  subdivided  into  arrondisements  and  communes,  and  has 
a  prefect  at  its  head,  assisted  by  an  elected  council. 

Laws. — The  laws  of  Rumania  are  based  on  the  Code  Napoleon,  and 
in  all  criminal  cases  there  is  a  jury. 

Courts  of  Law. — There  are  a  High  Court  of  Appeal,  Cour  de  Cassa- 
tion at  Bucharest,  4  Courts  of  Appeal  and  Courts  of  first  instance  in 
each  district.  The  judges  are  irremovable,  not  being  dependent  on  the 
executive.  There  are  also  sub-district  tribunals,  composed  of  justices 
of  the  peace,  and  communal  tribunals,  composed  of  the  mayor  and 
2  assessors,  who  have  jurisdiction  in  minor  cases.  Besides  these  ordinary 
Courts  the  larger  towns  also  have  commercial  Courts. 

Application  of  Imperial  Acts. — Anglo-Rumanian  relations  as  to 
trade-marks  and  copyright  in  designs  are  regulated  by  Order  in  Council 
of  August  5,  1892  (St.  R.  &  0.,  Rev.  1904,  vol.  ix.,  "Patents,  etc.,"  p.  11). 
ExTKADiTiON  {q.v.)  with  Rumania  is  regulated  by  the  Treaties  of  March 
21,  1893,  and  March  13,  1894  {ibid.,  vol.  v.,  "Fugitive  Criminal," 
p.  190). 

By  Order  in  Council  of  February  29,  1908  (St.  R.  &  0.,  1908,  No. 
205),  provision  is  made  for  the  apprehension  and  carrying  back  of 
deserters  from  Rumanian  ships  in  any  port  in  the  British  Islands  or  in 
certain  specified  colonies.  This  is  the  only  Order  in  Council  as  to 
foreign  deserters  which  does  not  extend  to  the  whole  of  His  Majesty's 
dominions. 

Under  the  power  conferred  on  the  Secretary  of  State  by  32  &  33 
Vict.  c.  43,  8.  13,  Bucharest  was  in  1891  raised  from  a  second  to  a  first- 
class  mission. 

[See  Statesman's  Year-Book ;  Encyclopcedia  Britannica.'] 

Runaway  Horse. — See  Estray.  The  owner  of  a  runaway 
horse  is  not  liable  for  the  damage  caused  by  it  to  person  or  property,  if 
he  or  his  servants  did  all  they  could  to  rein  it  in  or  stop  it  (Holmes  v. 
Mather,  1875,  L.  R.  10  Ex.  261) ;  and  did  not  leave  it  unwatched  in  a  street 
(Lynch  v.  Nurdin,  1840,  1  Q.  B.  29 ;  Tolhausen  v.  Dames,  1888,  57  L.  J. 
Q.  B.,  at  392) ;  or  left  it  in  a  stable  or  enclosure  properly  secured.  These 
defences  amount  to  a  plea  of  inevitable  accident.  If  the  injuries  were 
caused  by  the  vice  of  the  horse  and  not  the  fright,  the  owner  seems  not 
to  be  liable  without  some  evidence  of  scienter  besides  that  of  negligence 
in  letting  the  animal  loose  (Cox  v.  Burbidge,  1862,  13  C.  B.  N.  S.  430). 


64  EUNNING  AWAY 

R  U  n  n  i  ng"  Away.  — A  person  "running  away  and  leaving  his  wife 
and  children  chargeable,  or  whereby  she  or  they  or  any  of  them  shall 
become  chargeable  to  any  parish,  township,  or  place,"  is  deemed  a  rogue 
and  vagabond,  and  is  liable  to  be  imprisoned  for  any  term  not  exceeding 
three  calendar  months  (5  Geo.  iv.  c,  83,  s.  4).  To  commit  the  offence 
created  by  these  words,  a  person  must  either  abscond  or  so  conceal 
himself  that  the  parish  authorities  cannot  find  him,  or  he  must  absent 
himself  by  going  a  long  distance  {'per  Erie,  C.J.,  in  Cambridge  Union  v. 
Parr,  1861,  30  L.  J.  M.  C.  241). 

Runnings  Days. — See  Demukeage ;  Time,,  Computation  of . 

Running-down  Clause. —See  Collisions  at  Sea; 
Marine  Insueance. 

Running  Free. — As  to  "running  free"  and  "close  hauled" 
in  the  regulations  for  preventing  Collisions  at  Sea,  see  Vol.  III.,  at 
p.  174. 

Running  Landing  Numbers. — This  phrase  in  such  a 

clause  as  "  average  payable  on  every  ten  bales  of  cotton,  running  landing 
numbers,"  is  treated  in  practice  as  referring  to  the  order  in  which  the 
bales  are  entered  in  the  dock  landing  book  (see  Lowndes,  Marine 
Insurance,  ss.  321,  324). 

Running  Pow^ers.— See  Eailway. 

Run  with  the  Land,  etc.— See  Covenants  in  Leases. 

Rupert's  Land.— See  Canada. 

Rural  Dean  ;  Rural  Deanery.— A  rural  dean  (decanus 

vicanus  or  ruralis)  is  so  called  in  distinction  to  the  dean  of  a  cathedral 
church.  The  ancient  laws  and  constitutions  of  the  Church  describe 
rural  deans  sometimes  as  decani  simply,  and  sometimes  as  decani  rurales. 
The  office  is  a  very  ancient  one  in  the  Church,  and  has  existed  in  the 
Church  of  England  from  the  Anglo-Saxon  period.  It  would  appear  that 
the  rural  dean  was  originally  chosen  by  the  bishop.  His  duties  were 
further  to  execute  the  episcopal  processes,  and  for  this  purpose  to  attend 
the  Consistory  Court  of  the  diocese,  and  "to  inspect  the  lives  and 
manners  of  the  clergy  and  people  within  his  district ; "  and  for  these 
purposes  they  had  power  to  convene  the  clergy  within  their  districts, 
and  by  degrees  they  obtained  power  to  judge  and  determine  in  smaller 
matters.  In  process  of  time  the  archdeacon  obtained  a  voice  in  the 
selection  of  rural  deans,  and  it  is  laid  down  in  the  canon  law  (Decretal 
Epistle  of  Innocent  iii.,  extra  lit.  23,  c.  7 ;  Gibs.  Cod.,  971)  that  both 
the  bishop  and  archdeacon  should  take  part  in  his  appointment  and 
removal.  It  accordingly  became  recognised  as  the  duty  and  right  of  the 
archdeacon  at  the  close  of  his  visitation  to  present  to  the  bishop  such 
persons  as  he  should  find  in  every  deanery  qualified  for  the  post,  and 
out  of  these  the  bishop  selected  the  rural  dean. 

As  the  dean  of  a  cathedral  held  chapters  of  the  clergy  of  the  cathedral 
church,  so  the  rural  deans  also  held  chapters  or  gatherings  of  the  rural 
clergy,  and  these  chapters  were  of  two  kinds — first,  the  "  calendse,"  or 


EUSSIA  65 

monthly  meetings,  for  the  discussion  of  ordinary  matters ;  and,  secondly, 
the  more  solemn  or  principal  chapters,  for  the  discussion  of  matters  of 
grave  importance,  held  quarterly.  These  chapters  were  composed  of  the 
beneficed  clergy,  or  their  curates  as  proxies,  with  the  rural  dean  for  their 
president. 

The  decline  of  the  importance  of  the  office  of  rural  dean  dates  from 
a  constitution  of  Cardinal  Otho  in  the  thirteenth  century,  requiring 
archdeacons  frequently  to  be  present  at  rural  chapters.  This  worked 
out  so  as  to  deprive  the  rural  dean  of  his  presidency,  and  gradually  the 
business  formerly  transacted  by  the  rural  chapters  was  performed  at  the 
archidiaconal  visitations. 

Practically  the  only  duties  left  to  rural  deans  after  this  change  were 
those  of  visitation  and  report.  The  office  was,  however,  to  some  extent 
resuscitated  during  the  last  century,  and  is  now  a  working  part  of  the 
Church  system.  The  Act  6  &  7  Will.  iv.  c.  77,  recommends  that  every 
parish  should  be  in  a  rural  deanery,  and  the  Act  37  &  38  Vict.  c.  63, 
provides  that  every  parish  in  its  entirety  be  within  one  rural  deanery. 
The  Act  3  &  4  Vict.  c.  113,  s.  32,  provides  a  means  for  dividing  a  rural 
deanery  and  constituting  the  divisions  into  separate  rural  deaneries,  and 
37  &  38  Vict.  c.  63,  gives  power  to  alter  the  area  of,  and  to  increase  or 
diminish  the  number  of,  rural  deaneries. 

As  to  the  powers  of  a  rural  dean  under  the  Ecclesiastical  Dilapida- 
tions Act,  1871,  see  Dilapidations,  Ecclesiastical. 

Under  the  Incumbents  Registration  Act,  1871,  34  &  35  Vict.  c.  43, 
and  the  Pluralities  Amendment  Act,  48  &  49  Vict.  c.  54,  s.  3,  a  rural 
dean  may  be  a  commissioner.  The  office  of  rural  dean  is,  according  to- 
the  English  canonists,  of  a  temporary  nature ;  it  is  said,  however,  to  be 
perpetual  in  the  diocese  of  Norwich. 

[Authorities. — Lind.  Prov. ;  Otho,  Athan. ;  Gibs.  Cod.;  Phillimore^ 
Ecd.  Law,  2nd  ed.] 

Rural   District  Council. — See  District  Council,  VoL 
VI.  p.  656. 

Rural  Parish.— See  Parish. 

Rural  Sanitary  District.— See  County  District,  VoL 
IV.  p.  150,  and  District  Council,  ibid.,  pp.  656,  660. 

Russia. — Area. — The  Russian  Empire  covers  an  area  of  8,647,657 
square  miles  or  one-seventh  of  the  land  surface  of  the  globe,  and 
embraces  in  Europe,  Russia  proper,  Poland,  Finland,  and  Ciscaucasia, 
in  Asia,  Trans-Caucasia,  Siberia,  the  Steppes,  Turkestan,  and  the  Trans- 
Caspian  Province.  Its  European  frontier  adjoins  Germany,  Austro- 
Hungary,  and  Rumania,  whilst  on  the  east  it  stretches  over  the  whole 
of  Asia  north  of  the  Chinese  Empire. 

History. — The  Russians,  a  Slavonic  race,  came  originally  from  the 
Danube,  the  Elbe,  and  the  south  shore  of  the  Baltic,  and  entered  Russia- 
from  the  west.  They  made  several  inroads  into  the  Eastern  Empire 
in  the  9th  and  10th  centuries,  and  attacked  Constantinople  by  sea. 
During  the  10th,  11th,  and  12th  centuries  the  Russians  (who  in  the 
meantime  had  become  Christianised  and  part  of  the  Eastern  Church) 
covered  what  is  now  Russia  with  a  large  number  of  principalities,  and 
two  or  three  free  democratic  republics.  Early  in  the  13th  century  they 
VOL.  XIII.  5 


66  RUSSIA 

came  into  contact  with  the  Mongols  and  Tartars  who  invaded  Europe, 
and  by  whom  they  were  subdued  in  1238.  From  that  date  until  1462 
Russia  was  under  the  Tartar-Mongol  yoke. 

The  period  following,  from  1462  to  1613,  saw  the  consolidation  of  the 
Empire  and  the  first  trade  relations  between  England  and  Russia.  Ivan 
the  Terrible  (1533  to  1584)  overthrew  the  Mongols  of  Kasan,and  there- 
upon assumed  the  since  universally  used  title  of  Czar.  In  his  reign  the 
Russian  dominions  were  extended  to  the  Caspian  Sea,  and  Siberia  was 
conquered  by  the  Cossacks.  The  Russian  Company  incorporated  in 
1555,  and  referred  to  in  the  article  Companies,  Chartered  {q.v.),  was 
further  regulated  in  1698  by  10  Will.  ill.  c.  6,  and  in  1741  by  24  Geo.  ii. 
c.  36,  the  trade  to  and  from  Persia  through  Russia  was  opened  up  to 
the  Companies. 

Early  in  the  17th  century  Russia  continued  extending  her  dominions, 
notably  by  Siberia,  and  during  the  next  hundred  years  (especially  under 
Peter  the  Great,  the  founder  of  the  new  capital  St.  Petersburg)  all  the 
territory  lost  to  Poland  was  recovered,  Livonia  and  other  possessions 
east  of  the  Baltic  were  conquered  from  Sweden,  large  territories  on  the 
Caspian  Sea  from  Persia,  and  Azof  from  Turkey.  At  the  end  of  the 
18th  century  Russia  gained  Crim  Tartary  or  the  Crimea  and  large 
portions  of  Poland.  Finland  was  ceded  by  Sweden  {q.v.)  by  Treaty  of 
September  17,  1809  (Hertslet's  State  Papers,  vol.  viii.  p.  749),  and  about 
the  same  time  the  Russian  frontier  advanced  to  the  Danube  at  the 
expense  of  Turkey,  and  large  territories  between  the  Euxine  and 
Caspian  Seas  were  taken  from  Persia.  In  1812  Napoleon  invaded 
Russia  but  was  utterly  discomfited.  Russia  took  a  leading  part  in  the 
wars  which  led  to  his  overthrow,  and  at  the  general  peace  following 
this  event  Poland  was  united  with  Russia,  but  as  a  separate  State ;  as 
to  its  subsequent  history,  see  under  Poland  below.  By  the  Con- 
vention of  London,  May  15,  1815,  the  United  Kingdon  guaranteed  a 
loan  of  twenty-five  million  Dutch  florins  made  by  Russia  to  Holland. 
This  Russian-Dutch  loan  was  provided  for  by  the  Act  55  Geo.  in.  c.  115, 
as  amended  by  2  &  3  "Will.  iv.  c.  81,  and  was  paid  off  under  54  &  55 
Vict.  c.  26.  In  1854  the  Crimean  War,  in  which  Russia  was  opposed 
by  England,  France,  Turkey,  and  Sardinia,  took  place ;  two  years  later 
Russia  came  to  terms  and  agreed  to  evacute  a  small  portion  of  territory 
on  the  Danube,  and  her  power  was  somewhat  lessened  in  the  Euxine. 
In  1861  the  Russian  serfs  were  emancipated,  and  six  years  later  the 
extensive  territories  of  Turkistan  were  added  to  the  Empire. 

Recent  Delimitatioii  in  Eastern  Asia, — Russia  continued  to  extend  her 
possessions  in  Eastern  Asia  during  the  19  th  century,  but  received  a  set 
back  during  the  late  Russo-Japanese  War  of  1904-1905,  having  to 
withdraw  from  Manchuria,  to  cede  the  Southern  portion  of  Sakhalin 
to  Japan  and  abandon  Port  Arthur  and  Ta-lien,  as  well  as  make  other 
concessions  in  accordance  with  the  terms  of  the  Treaty  of  Portsmouth, 
September  5,  1905.  By  the  Anglo-Russian  agreement  of  August  31, 
1907  (Pari.  Papers,  1907,  Cd.  3750),  the  British  dominion  in  India  is  to 
all  intents  and  purposes  guaranteed,  Thibet  is  effectively  neutralised, 
Afghanistan  is  expressly  recognised  as  lying  within  the  British  sphere 
of  influence,  and  from  a  point  in  north-eastern  Persia,  covering  Herat 
southward  to  the  sea  at  Bander  Abbas,  a  broad  belt  of  the  Persian 
borderland  is  included  within  the  British  sphere  of  influence,  whilst  the 
Russian  sphere  of  influence  is  largely  extended  towards  the  Persian 
Gulf. 


EUSSIA  67 

Constitution. — The  entire  executive  and  legislative  power  is  really  in 
the  Emperor.  An  elective  State  Council,  or  "  Duma,"  was  brought  into 
being  on  August  6,  1905,  and  by  a  law  of  October  17,  1905,  actual  con- 
stitutional government  was  provided  for,  all  future  laws  to  be  approved 
of  by  the  "  Duma "  before  coming  into  efifect.  By  the  manifesto  and 
ukases  of  March  6,  1906,  provision  was  made  for  the  reorganisation  of 
the  Council  of  the  Empire  and  the  constitution  of  the  "  Duma."  These 
two  bodies  are  to  have  similar  powers  as  to  legislation,  the  initiation 
of  legislative  matters,  the  decision  of  questions  affecting  the  election  of 
their  members,  and  the  privilege  of  their  members  from  arrest  during 
session.  Half  the  Councillors  are  to  be  elected,  and  half  nominated  by 
the  Emperor,  who  also  nominates  the  President  and  Vice-President  of 
the  Council.  The  elected  Councillors  are  eligible  for  nine  years,  one- 
third  being  elected  triennially,  receive  a  salary,  and  are  returned  as 
follows — one  by  the  "  zemstvo  "  of  each  government  (in  the  European 
provinces  not  possessing  such  a  body  a  congress  of  the  representatives 
of  the  landed  proprietors  takes  the  place  of  the  "  zemstvo  ") ;  6  by  each 
of  the  following  bodies — the  Church  Synod,  the  Academy  of  Sciences 
and  University  together,  and  the  representatives  of  the  Polish  landed 
proprietors ;  12  by  the  representatives  of  the  commercial  and  industrial 
houses ;  and  18  by  the  representatives  of  the  nobility.  All  Councillors 
must  be  40  years  old  and  be  graduates  of  a  University. 

Deputies  are  elected  indirectly  for  5  years  and  are  paid.  The 
election  of  Deputies  is  made  by  the  electoral  bodies  of  the  chief  towns 
•of  governments  or  provinces,  and  of  the  28  greatest  cities,  these 
electoral  bodies  consisting  of  delegates  chosen  by  the  district  or  town 
■elective  assemblies.  Provincial  governors,  in  their  own  provinces, 
police  officers  in  their  official  localities,  soldiers  and  students  are  dis- 
qualified from  voting. 

All  measures  must  be  passed  by  both  the  Duma  and  the  Council  of 
Empire,  and  must  receive  the  Emperor's  sanction  before  becoming  law. 
To  4  great  Councils  or  boards,  possessing  separate  functions,  is  en- 
trusted the  government  of  the  Empire.  These  boards  are  the  Euling 
Senate,  by  which  all  laws  must  be  promulgated  to  be  valid,  and  which 
acts  as  the  High  Court  of  Justice  of  the  Empire;  the  Holy  Synod, 
which  is  at  the  head  of  religious  affairs ;  the  Committee  of  Ministers ; 
and  the  Council  of  Ministers,  consisting  of  the  14  Imperial  Ministers 
and  the  general  directors  of  the  most  important  administrations.  There 
are  also  2  Private  Cabinets,  one  controlling  charitable  affairs,  and  the 
other  the  public  instruction  of  girls  and  the  administration  of  certain 
institutions.  A  Special  Imperial  Cabinet,  consisting  of  3  sections,  viz., 
Economy,  Mines  and  Manufactures  and  Legislation,  an  Imperial  Head- 
quarters, and  a  Cabinet  for  the  reception  of  petitions  also  exist. 

Local  Administration. — The  unit  of  local  government  is  the  village 
•community  or  "  mir."  All  householders  in  each  "  mir  "  constitute  the 
"  mir  "  assemblies,  at  which  all  affairs  relating  to  the  particular  "  mir  " 
are  discussed  and  dealt  with. 

Several  "mirs"  united  together  form  the  "volost"  or  canton,  of 
which  there  are  altogether  18,012,  whose  peasant  inhabitants  elect  an 
elder,  or  "  volostnoy  starshina,"  at  the  "  volost "  assemblies,  which  con- 
sist of  delegates  of  the  "  mirs."  By  the  "  volost "  assembly  all  affairs 
relating  exclusively  to  each  "  volost "  are  considered  and  decided. 

The  system  of  local  government  is  continued  also  in  the  district  and 
jprovincial  assemblies  or  "  zemstvos  "  (815  in  number),  which  consist  of 


68  EUSSIA 

a  representative  assembly  or  "  zemskoye  sobraniye,"  and  an  executive 
or  "  zemskaya  uprava  "  nominated  by  the  assembly.  Three  classes  of 
delegates  form  the  "  sobraniye,"  viz.,  the  landed  proprietors,  representa- 
tives of  the  merchants,  artisans  and  urban  population,  and  representa- 
tives of  the  peasants  indirectly  elected.  Theoretically  the  "  zemstvos  " 
have  large  powers  as  to  taxation,  education,  roads,  etc.,  but  actually 
they  are  entirely  under  the  control  of  the  governor,  who  represents  the 
central  government. 

Under  the  law  of  June  16,  1870,  the  municipalities  have  possessed 
similar  institutions  to  the  "  zemstvos,"  viz.,  a  "  duma  "  and  an  "  uprava," 
with  a  mayor  at  its  head,  but  by  the  law  of  June  11, 1892,  their  powers 
were  brought  almost  entirely  under  the  governors  of  the  towns,  who  are 
nominated  by  the  Emperor. 

Last  of  all  in  the  ascending  scale  come  the  governments,  or  pro- 
vinces. There  are  78  governments,  of  which  European  Kussia  has  49, 
Poland  10,  Finland  8,  the  Caucasus  7,  and  Siberia  4;  19  provinces  of 
which  European  Eussia  has  1,  the  Caucasus  5,  Central  Asia  9,  and 
Siberia  4 ;  and  the  northern  portion  of  Sakhalin  forms  a  section.  Each 
government  is  administered  by  a  civil  governor,  who  is  assisted  by  a 
council  of  regency  to  which  all  measures  must  be  submitted,  but  in  17 
provinces,  in  Kronstadt,  and  the  island  of  Sakhalin  there  are  military 
governors.  Each  government  has  also  a  council  of  control  presided 
over  by  a  special  officer  immediately  under  the  control  of  the  Depart- 
ment of  Control.  Some  of  the  governments  or  provinces  are  united 
into  general  governments,  which  have  a  Governor-General  at  their  head, 
who,  as  the  Emperor's  representative,  has  entire  control  over  all  affairs, 
military  or  civil.  In  Siberia  a  Council,  having  a  deliberative  voice^ 
assists  the  Governor-General. 

Finland. — This  grand-duchy  has  preserved  the  Swedish  Constitution 
of  1772,  which  has  been  considerably  modified  and  finally  "  reformed  "  in 
1906  under  Ukase  of  November  4,  1905.  The  Diet  or  Parliament 
consists  of  one  Chamber  of  200  members,  elected  by  direct  vote  for  1& 
electoral  districts  (the  representation  is  rearranged  by  population  decen- 
nially) for  3  years  and  paid.  The  suffrage  is  possessed  by  all  Finnish 
citizens  (male  and  female)  of  24  years  of  age,  and  all  citizens  entitled 
to  vote  are  eligible  to  the  Diet.  The  Diet  can  decide  on  any  motion 
which  does  not  touch  the  fundamental  laws  or  the  organisation  of  land 
and  sea  defence.  Ministers  are  responsible  to  the  Grand-Duke,  who  can 
dissolve  the  Diet,  as  well  as  to  the  Diet. 

Poland. — Poland  lost  its  administrative  independence  in  1864,  and 
by  Ukase  of  February  23,  1868,  was  incorporated  with  Eussia,  the  use 
of  the  Polish  language  in  public  places  and  for  public  and  legal  purposes 
being  prohibited.  In  Poland  the  "  Gmina,"  whose  assemblies  are  com- 
posed of  all  landholders  (the  clergy  and  police  alone  being  excluded), 
who  have  but  one  vote  irrespective  of  the  amount  of  land  possessed,, 
takes  the  place  of  the  Eussian  volost  or  canton.  The  "Gmina"  is 
directly  subject  to  the  Chief  of  the  District,  and  consequently  possesses. 
less  power  than  the  "  volost." 

Baltic  Provinces. — These  formerly  possessed  self-government,  but 
these  privileges  have  been  gradually  curtailed.  The  Committees  for 
peasants'  affairs,  possessing  the  same  powers  as  in  Eussia  proper,  were 
introduced  in  April  1893.  The  various  privileges  and  powers  formerly 
belonging  to  the  nobility  and  landholders  have  been  transferred  ta 
State  functionaries. 


EUSSIA  69 

Laws. — A  new  Civil  Code  has  been  recently  drafted,  the  sources 
from  which  it  is  drawn  are  the  old  Civil  Code,  the  judgments  of  the 
Supreme  Court,  the  Swiss  Law,  the  German  Civil  Code,  the  Code 
Napoleon,  and  the  law  of  the  Baltic  Provinces.  The  Commercial  Law 
has  been  amalgamated  with  the  Civil  Law.  A  new  Criminal  Code  has 
also  been  drafted,  and  instead  of  the  1711  paragraphs  of  which  the  old 
Code  consisted  it  has  only  about  a  third  of  that  number,  as  the  new 
Code  does  not  define  every  separate  crime  but  relies  upon  broad  general 
definitions.  It  is  interesting  to  note  that  strikes  become  criminal  under 
the  new  Code,  when  they  are  directed  against  the  government  or  lead 
to  injuries  to  persons  or  damage  to  property. 

Courts  of  Law. — By  the  law  of  November  1864  Assize  Courts  with 
juries  were  instituted,  as  well  as  elective  justices  of  the  peace  with 
similar  powers  to  those  of  English  magistrates,  assemblies  of  justices  of 
the  peace  hearing  appeals  from  the  judgments  of  individual  justices, 
and  Appeal  Courts  for  re-hearing  cases  not  tried  before  a  jury.  Above 
all  these  Courts  was  the  Court  of  Cassation,  which  made  part  of  the 
Senate.  But  there  have  been  several  changes  made  in  the  system. 
Elective  justices  were  abolished  in  1889  and  their  places  taken,  in  the 
country  districts,  by  the  country  Chiefs,  nominated  by  the  adminis- 
tration from  among  the  nobility,  and  in  the  towns  by  urban  justices 
nominated  in  the  same  manner;  the  assistance  of  juries  in  certain 
cases  was  suppressed ;  and  the  examining  magistrates  were  temporarily 
appointed  and  were  not  irremovable.  There  are  14  Appeal  Courts 
(11  in  European  Eussia  and  3  in  Asiatic  Eussia),  as  well  as  104  Assize 
Courts  (88  in  European  and  16  in  Asiatic  Eussia).  There  are  also 
cantonal  tribunals,  composed  of  from  4  to  12  judges,  elected  at  cantonal 
assemblies,  whose  jurisdiction  extends  to  injuries  and  offences  of  all 
kinds  and  disputes  relating  to  property  between  the  peasants,  not 
involving  more  than  100  roubles.  More  important  affairs  up  to  300 
roubles  are  judged  by  the  country  Chiefs. 

Application  of  Lmperial  Acts. — The  Statutes  relating  to  the  Eussia 
Company  and  to  the  Eussian-Dutch  Loan  have  been  referred  to  above. 

Extradition  {q.v.)  with  Eussia  is  regulated  by  the  Treatyof  November 
24,  1886  (St.  E.  &  0.,  Eev.  1904,  vol.  v.,  "  Fugitive  Criminal,"  p.  201). 

As  to  Ships  and  Shipping,  Eussia  and  Finland  have  adopted  the 
existing  British  rules  for  the  measurement  of  sailing  ships  and  steam- 
ships' tonnage,  and  accordingly  an  Order  in  Council  of  November  20, 
1880  {ibid.,  vol.  viii., "  Merchant  Shipping,"  p.  16),  provides  that  Eussian 
and  Finnish  ships  need  not  be  remeasured  in  any  port  or  place  in  His 
Majesty's  dominions,  but  that  their  certificates  of  registry  shall  be  evidence 
of  the  tonnage.  The  British  Eegulations  of  1896  for  preventing  collisions 
at  sea  apply  to  Eussian  ships,  whether  within  British  jurisdiction  or  not 
{ibid.,  p.  246),  except  as  regards  lights  on  fishing  boats,  with  regard  to 
which  Article  10  of  the  British  Eules  of  1879  apply  {ibid.,  p.  246).  Pro- 
vision was  made  by  Order  in  Council  of  August  27,  1860  {ibid.,  p.  87), 
for  the  apprehension  and  carrying  back  to  their  ships  of  seamen  deserting 
from  Eussian  ships  in  any  part  of  His  Majesty's  dominions. 

By  the  Sea  Fisheries  (North  Pacific)  Order  in  Council,  1895  {ibid., 
vol.  iv.,  "Fishery,"  p.  13),  regulations  were  made  as  to  the  Seal  Fishery 
in  the  North  Pacific. 

By  Order  in  Council  of  August  11,  1903  {ibid.,  vol.  iv.,  "  Customs 
and  Excise,"  p.  17),  the  importation  of  sugar  from  Eussia  was  pro- 
hibited. 


70  SABBATH 

An  Order  in  Council  (St.  E.  &  0.,  1891,  p.  517),  under  the  Marriage 
Act,  1890,  s.  9,  made  provision  as  to  certain  marriages  celebrated  at 
St.  Petersburg  between  May  9  and  August  9,  1891. 

The  Treaty  with  Russia  of  December  20,  1841,  for  the  abolition  of 
the  African  Slave  Trade,  was  carried  into  effect  by  6  &  7  Vict.  c.  50, 
which  in  common  with  other  Acts  was  repealed  and  consolidated  by 
the  Slave  Trade  Act,  1873,  36  &  37  Vict.  c.  88.  Eussia  was  a  party  to 
the  Brussels  General  Act,  which  by  Order  in  Council  (St.  E.  &  0.,  Eev. 
1904,  vol.  xi.,  "  Slave  Trade,"  p.  1)  has  been  brought  within  the  1873  Act. 

Vassal  States  in  Central  Asia. — The  adjoining  Khanates  of  Bok- 
hara and  Khiva  are,  save  on  the  south  where  the  boundary  of  the 
former  is  coterminous  with  that  of  Afghanistan,  entirely  surrounded 
by  Eussian  territory.  Bokhara  has  an  area  of  80,000  square  miles  (or 
about  the  size  of  Great  Britain)  and  is  nearly  four  times  as  large  as 
Khiva.  Both  States  were  founded  by  the  Usbegs  (Turkish  Tartars)  in 
the  15th  century,  and  remain  Mahomedan. 

In  1866  Bokhara  proclaimed  a  holy  war  against  Eussia,  and  the 
State  was  thereupon  invaded  by  the  Eussians,  who  compelled  the  Amir 
to  cede  the  territory  now  forming  the  Eussian  district  of  Syr  Daria 
(north  of  Bokhara),  and  to  permit  Eussian  trade.  In  1873  under  a 
further  treaty  (Hertslet's  State  Papers,  vol.  Ixv.  p.  467),  by  which  no 
foreigners  were  to  be  admitted  in  Bokhara  without  a  Eussian  passport, 
the  State  became  a  mere  Eussian  dependency.  The  importation  of 
spirituous  liquors,  except  for  the  use  of  the  Eussian  Embassy,  has  been 
prohibited  by  the  Amir. 

In  Khiva  Eussian  influence  dates  from  the  18th  century,  and 
assumed  its  present  supremacy  under  a  Treaty  of  1873  (ibid.,  vol.  Ixv. 
p.  84)  by  which  the  khanate  was  reduced  to  a  dependency. 

[See  Stateman's  Year-Booh ;  Encyclopcedia  Britannica ;  Journal  of 
Comparative  Legislation,  1902,  pp.  31,  87.] 


Sabbath.— See  Sunday. 

Sac  (or  Sake). — A  cause  or  matter;  the  right  to  take 
cognisance  of  actions.  "  Sac  "  is  usually  joined  with  "  soc  "  (or  "  soke  "), 
usually  also  with  "toll"  and  "theam,"  all  being  words  customarily 
employed  to  describe  the  right  of  the  owner  of  a  manor  to  exercise 
jurisdiction  over  causes  (Stubbs,  Constitutional  History,  vol.  i.  184,  185 ; 
Pollock  and  Maitland,  Hist.  Eng.  Law,  vol.  i.  566,  567). 

Sacrament. — A  sacrament  is  defined  in  the  Catechism  of  the 
Church  of  England  as 

an  outward  visible  sign  of  an  inward  spiritual  grace  given  unto  us,  ordained 
by  Christ  himself  as  a  means  whereby  we  receive  the  same,  and  a  pledge 
to  assure  us  thereof; 

and  the  Church  of  England  recognises  as  sacraments,  universally  neces- 
sary for  salvation,  two  only,  that  is  to  say,  "baptism  and  the  Supper, of 
the  Lord.  Those  five,  commonly  called  sacraments,  that  is  to  say,  con- 
firmation, penance,  orders,  matrimony,  and  extreme  unction,  are  not  to 
be  counted  for  sacraments  of  the  gospel,  being  such  as  have  grown  partly 
of  the  corrupt  following  of  the  apostles,  partly  are  states  of  life  allowed 


SAFE  CONDUCT  71 

by  the  Scriptures:  but  yet  have  not  like  nature  of  sacraments  with 
baptism  and  the  Lord's  Supper,  for  that  they  have  not  any  visible  sign  or 
ceremony  ordained  of  God"  (art.  25).     But  see  Homilies,  355,  356. 

Reservation  of  the  SacrameTit  of  the  Lord's  Supper. — On  May  1,  1900, 
in  two  independent  "opinions"  the  Archbishops  of  Canterbury  and 
York  concurred  in  forbidding  any  form  of  reservation  of  the  conse- 
crated elements  (see  Eeport  of  the  Royal  Commission  on  Ecclesiastical 
Discipline,  1906,  [Cd.  3040]  p.  63;  Blunt's  Church  Law  (10th  ed.), 
pp.  170-172). 

Sacrileg'e. — This  term  properly  means  an  act  violating  the 
sanctity  of  an  ecclesiastical  place  or  person  (see  2  Hale,  P.  C.  365). 
Under  this  head  may  be  classed  a  number  of  offences: — 

1.  Against  the  persons  of  ministers  of  religion. 

2.  Against  the  order  of  religious  worship. 

3.  Against  ecclesiastical  buildings  and  property  therein  contained. 

1.  It  is  a  misdemeanor  by  threats  or  force  (1)  to  obstruct,  prevent, 
or  endeavour  to  obstruct  or  prevent,  any  clergyman  or  other  minister  in 
or  from  celebrating  divine  service  or  otherwise  officiating  in  any  church, 
chapel,  meeting-house,  or  other  place  of  divine  worship ;  (2)  in  the  per- 
formance of  his  lawful  duties  in  the  burial  of  the  dead ;  (3)  to  strike  or 
offer  violence  to  or  arrest  on  civil  process  any  clergyman  or  minister 
engaged  or  about  to  engage  in  such  rites  or  duties,  or  in  going  to  or 
returning  from  their  performance  (24  &  25  Vict.  c.  100,  s.  36).  This 
enactment  combines  the  provision  of  very  early  statutes  (50  Edw.  III. 
c.  5 ;  1  Rich.  ii.  c.  15)  with  the  rule  laid  down  by  the  judges  as  to  the 
privilege  of  the  clergy  from  arrest  on  civil  process,  eundo,  morando,  and 
redeundo.  The  remedy  is  in  addition  to  the  ordinary  remedies  for 
Assault,  and  the  remedy  given  for  misconduct  at  funerals,  given  by 
43  &  44  Vict.  c.  41,  s.  7.    See  Burial. 

2.  As  to  this  head,  see  Brawling. 

It  appears  not  to  be  the  part  of  the  civil  magistrate  to  inquire  whether 
the  rite,  service,  or  ceremony  during  which  the  disturbance  takes  place  is 
authorised  by  the  law  of  the  community  to  which  the  place  of  worship 
belongs. 

3.  The  term  "  sacrilege  "  is  specially  applied  to  robbery  of  property 
belonging  to  or  situated  in  a  church  (B.  v.  Rourke,  1819,  Russ.  &  R.  386), 
which  can  also  be  punished  as  ordinary  larceny.  See  2  Russell,  Crimes, 
6th  ed.,  54,  and  Burglary. 

The  property  in  goods  belonging  to  a  parish  church  may  be  laid  in 
the  parishioners,  the  rector,  or  the  churchwardens.  In  the  case  of  other 
places  of  worship  it  should  be  laid  in  the  trustees  or  legal  owners  {R.  v. 
Hutchinson,  1820,  Russ.  &  R.  412). 

As  to  burning  churches,  see  Arson.  As  to  riotous  or  other  damage 
to  them,  see  Malicious  Damage  ;  Riot. 

Sacristan.— See  Sexton. 

Safe  Conduct. — A  kind  of  passport  issued  by  the  supreme 
authority  of  a  belligerent  State,  or  by  the  commander-in-chief  of  its 
forces,  enabling  a  citizen  of  an  enemy  State,  or  goods  belonging  to  an 
enemy,  to  pass  without  molestation.  Safe  conducts  are  generally  issued 
for  a  particular  place  and  time,  and  the  reason  of  such  permission  being 
given  is  generally  stated.     If  detained  beyond  the  prescribed  limit  of 


72  SAFE  CUSTODY 

time  by  illness  or  force  majeure,  the  grantee  is  still  entitled  to  protec- 
tion; but  if  he  voluntarily  exceeds  the  limits  of  time  or  place,  he 
becomes  subject  to  the  ordinary  laws  of  war,  or  to  any  penalties  imposed 
by  the  grantor. 

[See  Eisley,  The  Law  of  War,  London,  1897,  pp.  156,  157 ;  Wheaton, 
International  Law,  4th  Eng.  ed.,  1904,  s.  408,  p.  549.] 

Safe  Custody. — That  branch  of  the  contract  of  bailment 
known  as  deposit  (depositum)  involves  the  intrusting  of  the  possession  of 
the  goods  of  A.  to  B.  for  safe  custody  only. 

The  bailee  must  return  the  goods  on  demand,  and  must  not  use  them. 
The  degree  of  care  expected  of  the  bailee  depends  on  whether  the  deposit 
is  gratuitous  or  for  reward  (Beven,  Negligence,  3rd  ed.,  740-763 ;  and  see 
Bailments). 

In  order  to  ascertain  in  case  of  deposit  whether  conversion  or  making 
away  with  goods  or  money  amounts  to  larceny  by  the  bailee,  it  is  neces- 
sary to  show  that  the  bailee  was  bound  to  hold  and  return  the  specific 
thing,  and  converted  it  with  intent  permanently  to  defraud  the  owner 
of  his  property  in  it.     See  Larceny. 

Safe  Loading  Place.— See  Cargo. 

Safe  Port. — See  Always  Afloat. 

Said. — The  words  "the  said"  ought  to  be  referred  to  the  last 
antecedent  {Esdaile  v.  Maclean,  1846,  15  Mee.  &  W.  277). 

Sailors'   Homes. — See  Seaman. 

Saint,  derived  from  the  Latin  sanctus,  though  the  French,  sainct, 
properly  signifies  a  holy  or  pious  person,  and  is  so  used  in  every  branch 
of  the  Catholic  Church.  From  the  commencement  of  the  Christian 
religion  great  veneration  was  always  shown  to  persons  remarkable  for 
their  holiness  or  piety,  and  their  memory  was  cherished  after  their 
death.  In  course  of  time  it  became  the  custom  to  implore  departed 
saints  to  assist  the  living  by  their  prayers  and  intercession  with  the 
Deity.  It  was  not  until  the  tenth  century  that  any  person  was  sainted 
by  the  Bishop  of  Eome  alone,  and  this  honour  was  first  conferred  on 
Udalric,  Bishop  of  Augsburg,  by  John  xv.  Shortly  afterwards  the 
privilege  of  declaring  departed  Christians  to  be  saints  was  confined  to 
the  Pope  of  Eome ;  and  the  creation  of  saints  was  distinguished  by  the 
name  of  canonisation.  The  invocation  of  saints  as  practised  in  the  Eoman 
Catholic  Church  is  condemned  by  the  Church  of  England,  as  "  a  fond 
thing  vainly  invented,  and  grounded  upon  no  warranty  of  Scripture,  but 
rather  repugnant  to  the  Word  of  God  "  (Art.  xxii.). 

St.  Christopher. — See  Leeward  Islands. 

St.  Helena. — Area  and  Earlier  History. — St.  Helena  is  an 
island  in  the  South  Atlantic  Ocean,  having  an  area  of  47  square  miles, 
or  rather  larger  than  Jersey. 

The  island  was  first  discovered  by  the  Portuguese  in  1502,  who, 
however,  made  no  permanent  settlement  there ;  when  they  abandoned 
it,  it  was  in  the  hands  of  the  Dutch  from  1645  to  1650.     The  East  India 


ST.  HELENA  73 

Company  took  possession  in  1651,  and  in  1661  obtained  a  charter  for 
its  administration.  After  two  brief  occupations  by  the  Dutch,  in  1665 
and  1673,  the  Company  in  December  1673  obtained  a  new  charter,  and 
held  the  island  (save  from  1815-1821,  during  the  period  of  Napoleon's 
immurement  there)  until  1834.  By  56  Geo.  iii.  c.  23,  all  intercourse  with 
the  island  during  Napoleon's  detention  there  was  prohibited.  This 
restriction  was  removed  on  his  death  in  1821  (see  Circular,  July  30, 
1821,  Hertslet's  Treaties,  vol.  iv.  p.  493).  By  sec.  112  of  the  Government 
of  India  Act,  1833,  3  &  4  Will.  iv.  c.  85,  made  perpetual  by  16  &  17 
Vict.  c.  95,  the  island  was  vested  in  the  Crown  as  from  April  22,  1834, 
and  by  Order  in  Council  of  October  12, 1835  (repealed  by  the  1863  Order 
mentioned  below),  provision  was  made  for  the  government  thereunder. 

Constitution. — By  Order  in  Council,  under  the  1833  Act  of  July  27, 
1863  (St.  K.  &  O.,  Kev.  1904,  vol.  xi.,  "St.  Helena,"  p.  12),  provision  was 
made  for  the  government  of  the  island,  and  by  Letters  Patent  of  June  11, 
1890  {iUd.,  p.  16),  as  amended  by  Letters  Patent  of  December  6,  1906 
(St.  K.  &  0.,  1906,  p.  883),  the  office  of  Governor  and  Commander-in- 
Chief  of  the  island  was  reconstituted.  Under  these  provisions  the 
Government  is  carried  on  by  a  Governor,  aided  by  an  Executive  Council 
of  three  members,  all  nominated  by  the  Governor.  The  Governor 
exercises  all  functions  of  legislation  by  ordinances,  there  being  no  Legis- 
lative Council.  St.  Helena  is  therefore  a  "  Crown  "  Colony  (see  article 
Colony)  not  unlike  Gibraltar,  save  that  in  Gibraltar  there  is  no  Executive 
Council.  The  power  of  His  Majesty  to  legislate  by  Order  in  Council  is 
expressly  reserved. 

Laws. — Under  Ordinance  No.  1  of  1868  the  law  of  the  colony  is  the 
law  of  England  for  the  time  being,  so  far  as  it  is  applicable  to  local  cir- 
cumstances, modified  by  such  laws  of  the  East  India  Company  as  still 
survive  from  1834,  by  local  Ordinances,  and  Orders  in  Council.  Under 
Ordinance  No.  6  of  1905  the  Imperial  weights  and  measures  are  to  be 
used. 

Courts  of  Law. — By  Order  in  Council  of  February  13,  1839  (St.  K. 
&  0.,  Rev.  1904,  vol.  xi.,  "  St.  Helena,"  p.  1),  the  Supreme  Court  of  St. 
Helena  was  established,  and  the  Governor  was  empowered  by  Order  in 
Council  of  April  5,  1852  {ibid.,  p.  11),  to  act  in  certain  cases  in  place  of 
the  Chief  Justice,  and  by  Order  in  Council  of  June  28,  1878  {ibid.,  p.  14), 
to  summon  members  of  the  Executive  Council  to  sit  as  assessors  in 
Supreme  Court  trials.  In  practice  the  Governor  is  also  appointed  Chief 
Justice.  A  Court  of  Divorce  and  Matrimonial  Causes  was  established 
by  Order  in  Council  of  May  1,  1890.  Appeals  from  the  Supreme  Court 
lie  to  His  Majesty  in  Council,  and  are  regulated  by  Arts.  24,  25  of  the 
Order  in  Council  of  1839,  and  by  the  Charter  of  Justice  Pari.  Papers, 
1857-8  [C.  388].  For  conditions  of  appeal  see  article  Pkivy  Council. 
There  are  also  a  Summary  Court  and  a  Police  Magistrate's  Court  for 
minor  offences,  from  which  appeals  lie  to  the  Supreme  Court,  and  which 
are  held  by  the  same  official,  who  is  also  Crown  prosecutor. 

Application  of  Imperial  Ads. — By  Order  in  Council  of  April  20, 1880 
(St.  K.  &  0.,  Rev.  1904,  vol.  ii.,  "Coin,  Colonies,"  p.  12),  brought  into 
operation  June  17,  1880,  legal  currency  in  St.  Helena  was  restricted  to 
sterling  coins  of  the  United  Kingdom,  and  the  amount  to  which  silver 
and  bronze  coins  should  be  legal  tender  was  regulated.  By  Order  in 
Council  of  February  3,  1893  (ibid.,  p.  114),  the  Imperial  Coinage  Acts 
were  applied  to  the  colony.  Probates  granted  in  St.  Helena  are  recog- 
nised in  the  home  Courts,  under  Order  in  Council  of  January  29,  1900 


V4  ST.  LUCIA 

(ibid.,  vol.  i.,  "  Administration,"  p.  12),  the  colony  having  made  reciprocal 
provision  by  Act  No.  4  of  1899.  By  Treasury  Determination  of  October 
16,  1902  (ilid.,  vol.  ix.,  "Pension  and  Half  Pay,"  p.  26),  the  revenues  of 
St.  Helena  have  been  declared  to  be  "  public  funds  "  within  sec.  4  of  55 
&  56  Vict.  c.  40,  and  are  consequently  applicable  to  superannuation 
purposes. 

[^Authorities. — Brooke,  History  of  St.  Helena;  Melliss,  St.  Helena 
(1875);  Colonial  Office  List;  St.  Helena  Ordinances.] 

St.  Lucia.. — Area. — The  island  of  St.  Lucia,  situated  in  the 
Caribbean  Sea,  is  one  of  the  Windwakd  Islands  {q.v.),  and  has  an  area 
of  about  233  square  miles,  or  about  the  size  of  Middlesex — nearly  as 
great  as  that  of  the  two  other  Windward  colonies  taken  together. 

Earlier  History. — St.  Lucia  was  discovered  by  Columbus  in  1502,  a 
century  later  it  was  claimed  by  France,  and  in  1663  taken  by  England, 
and,  after  repeatedly  passing  from  one  country  to  the  other,  was  captured 
by  England  in  1803,  and  since  then  has  remained  a  British  possession. 
St.  Lucia  became  part  of  the  Windward  Islands  Government  in  1838. 

Constitution. — St.  Lucia  was  added  in  1838  to  the  Government  of  the 
Windward  Islands  {q.v.),  and  is  administered  by  an  Administrator 
acting  under  the  General  Governor  of  the  three  Windward  colonies. 
Under  the  Letters  Patent  constituting  the  general  Government,  there 
are  separate  (nominated)  executive,  and  legislative,  councils  for  St.  Lucia 
(St.  R  &  0.,  Rev.  1904,  vol.  xiii.,  "  Windward  Islands,"  p.  1). 

Laws. — The  common  law  of  England  was  introduced  about  thirty- 
five  years  ago,  and  prevails  where  the  local  ordinances  and  codes  are 
silent.  Some  Imperial  Statutes  have  been  adopted,  either  wholly  or  in 
part,  notably  those  dealing  with  merchant  shipping,  bills  of  exchange, 
police,  customs,  and  joint-stock  companies.  Three  old  French  enact- 
ments still  remain  in  force,  viz. — (1)  Arret  en  Reglement  du  Conseil 
Superieur  portant  que  la  Coutume  de  Paris  et  des  ordonances  du  Roi 
Seront  suivies  en  cette  He,"  of  1681;  (2)  "Ordre  du  Eoi  au  sujet  des 
Cinquante  Pas  du  Bord  de  Mer"  of  1704;  and  (3)  "Arret  du  Conseil 
Souverain  concernant  les  Cinquante  Pas  du  Roi "  of  1781.  A  code  of 
civil  law  on  these  lines  was  framed  in  October  1879,  and  is  practically 
the  law  of  Upper  Canada ;  Art.  2485  of  this  Code  declares  the  extent 
to  which  the  old  laws  are  in  force.  A  criminal  code  was  introduced  in 
1889,  based  on  the  Jamaica  Code,  The  Statute  Law  of  St.  Lucia  was 
consolidated  in  1889,  and  is  published  in  one  volume  arranged  chrono- 
logically with  an  index.     There  is  also  an  annual  volume  of  laws. 

Courts  of  Law. — When  St.  Lucia  belonged  to  France  the  Courts  were 
the  Sdnechaussee  and  the  Conseil  Superieur,  or  Court  of  Appeal.  The 
constitution  of  the  Royal  Court  was  regulated  by  Orders  in  Council  of 
April  23,  1831,  and  June  20,  1831  (Clark's  Colonial  Law,  pp.  267-283). 
The  Royal  Court  is  now  regulated  by  Ordinance  No.  29  of  1888  (No.  98 
of  the  Revised  Laws,  1889),  as  amended  by  subsequent  Ordinances.  The 
Court  has  original  civil  and  criminal  as  well  as  appellate  jurisdiction, 
and  is  constituted  by  a  Chief  Justice.  In  criminal  cases  facts  are  decided 
by  a  jury  of  12.  There  are  also  two  Magistrates'  Courts  for  less  serious 
cases,  whose  decisions  are  liable  to  review  by  the  Chief  Justice.  Appeals 
from  the  Superior  Court  lie  to  the  Court  of  Appeal  for  the  Windward 
Islands  (see  that  article),  and  therefrom  to  His  Majesty  in  Council. 

Currency.— By  Order  in  Council  of  May  9,  1891  (St.  R.  &  0.,  Rev. 
1904,  vol.  ii.,  "  Coin,  Colonies,"  p.  112),  silver  groats,  or  fourpences — 


ST.  VINCENT  75 

specially  coined  for  the  West  Indies — were  made  current  within  the 
colony,  and  by  a  further  Order  of  February  3,  1898  {ibid.,  p.  114),  the 
Imperial  Coinage  Act,  1870,  as  amended  by  that  of  1891,  was  put  in 
force  in  the  colony.  In  addition  to  British  sterling.  United  States  gold 
coins  are  legal  tender  under  Orders  in  Council  of  August  19,  1853,  and 
March  9, 1854  {ibid.,  pp.  97-99).  The  Spanish  and  Mexican  coins  which 
were  current  under  an  Order  in  Council  of  September  14,  1838  {ihid., 
p.  96),  were  demonetised,  as  to  silver  dollars,  by  an  Ordinance  of  1882, 
and  as  to  doubloons  by  St.  E.  &  0.,  1908,  No.  463. 

Application  of  Imperial  Acts. — The  Colonial  Extradition  Ordinance, 
1877  (No.  45  of  the  Laws  of  St.  Lucia),  has  been  by  Order  in  Council 
(ibid.,  vol.  v.,  "  Fugitive  Criminal,"  p.  313)  incorporated  with  the  Imperial 
Act,  and  St.  Lucia  has  been  (ibid.,  p.  325)  grouped  with  the  other  West 
Indian  colonies  for  the  purpose  of  the  inter-colonial  backing  of  extra- 
dition warrants  under  Part  II.  of  the  Fugitive  Offenders  Act,  1881. 

The  provision  of  the  Imperial  Acts  prohibiting  the  importation  of 
foreign  reprints  of  copyright  works  have  been  by  Order  in  Council  (ibid., 
vol.  ii.,  "  Copyright,"  p.  46)  suspended  in  St.  Lucia  during  the  subsistence 
of  the  Colonial  Ordinance  (No.  9  of  1850),  protecting  the  interests  of 
British  authors. 

Prisoners  may,  under  an  Order  in  Council  (ibid.,  vol.  ii.,  "  Colonial 
Prisoner,"  p.  12),  be  removed  for  punishment  from  one  of  the  Windward 
Islands  to  another,  and  under  a  Treasury  Determination  (ibid.,  vol.  ix., 
"  Pension,"  etc.,  p.  24)  the  revenues  of  the  colony  are  available  for  super- 
annuation purposes. 

[Authorities. — Colonial  Office  List ;  St.  Lucia  Ordinances ;  Journal  of 
Comparative  Legislation,  vol.  i.  p.  175.] 

St.  Vincent. — Area. — The  island  of  St.  Vincent  lies  in  the 
Caribbean  Sea,  is  one  of  the  Windward  Islands  (q.v.),  and  has  an  area 
of  132  square  miles — about  that  of  the  sister  colony  of  Grenada,  or 
about  half  the  size  of  Middlesex. 

Earlier  History. — St.  Vincent,  like  the  other  Windward  Islands,  was 
discovered  by  Columbus,  and  like  them  it  was  inhabited  by  the  Caribs, 
in  whose  exclusive  possession  it  remained  until  1675.  For  the  next 
100  years  it  was  sometimes  in  English,  and  sometimes  in  French, 
hands.     Since  1796  it  has  been  a  British  possession. 

Constitution. — St.  Vincent  has,  like  Grenada  but  unlike  St.  Lucia, 
formed  part  of  the  administrative  group  of  the  Windwaed  Islands  (q.v.), 
since  its  first  formation  in  1763.  Like  the  two  sister  colonies  it  has 
always  had  its  own  legislative  and  other  institutions.  The  original 
Government  was  composed  of  a  Governor,  Legislative  Council  and 
Assembly,  an  Executive  Council  was  established  in  1856,  and  an 
Administrative  Committee  was  added  thereto  three  years  later.  In 
1867  a  single  Legislative  Assembly  was  created  in  lieu  of  the  original 
Legislative  Council  and  Assembly,  half  official  and  nominative,  and  half 
elective.  By  39  &  40  Vict.  c.  47,  s.  2,  power  was  given  to  His  Majesty 
by  Order  in  Council  to  confirm  an  Act  amending  the  constitution  of 
the  island  and  its  dependencies.  The  present  constitution  was  estab- 
lished by  Order  in  Council  of  March  5,  1885  (St.  K.  &  0.,  Rev.  1904, 
vol.  xiii.,  "  Windward  Islands,"  p.  14),  under  which  there  is  a  Legislative 
Council  consisting  of  official  and  non-official  members,  all  of  whom  are 
nominated  and  appointed  by  His  Majesty.  St.  Vincent  is  administered 
by  an   Administrator  acting  under  the  Governor  of   the  Windward 


76  ST.  VINCENT 

Islands,  and  aided  by  an  Executive  Council  composed  of  official  members 
{ibid.,  p.  1). 

Laws. — The  common  law  of  England  and  the  statute  law,  so  far 
as  it  was  applicable,  were  introduced  into  the  colony  by  the  Proclama- 
tion of  October  7,  1763,  and  Letters  Patent,  but  whether  any  particular 
Imperial  Statute  passed  prior  to  1763  is  in  force  in  the  colony  or  not 
has  to  be  decided  in  each  case  by  the  Courts.  There  are,  besides,  local 
Acts  and  Ordinances,  and  Eegulations  or  Orders  in  Council.  The  laws 
of  St.  Vincent  have  been  revised  more  than  once,  the  last  edition  being 
published  in  1884  in  two  volumes  chronologically  arranged  with  an  index. 
A  Statute  Law  Eevision  Ordinance  No.  14  of  1895  was  passed  in  1895. 
There  is  a  Civil  Procedure  Code  (No.  3  of  1884),  a  Criminal  Code,  a 
Criminal  Procedure  Code  and  an  Evidence  Code — the  last  mentioned 
being  based  on  the  Indian  and  Straits  Settlements  Evidence  Codes. 
The  two  Criminal  Codes  are  based  on  the  Codes  in  force  in  St.  Lucia 
and  the  Gold  Coast. 

Courts  of  Law. — The  Court  of  Chancery  derived  its  authority  from 
the  Proclamation  of  October  7,1763,  establishing  the  Colony,  the  Supreme 
Court  of  Common  Law  from  an  Ordinance  of  1786,  and  the  Court  of 
Grand  Sessions  of  the  Peace  from  an  Ordinance  of  1807.  These  three 
Courts  and  the  Court  of  Ordinary  were  consolidated  by  Ordinance 
No.  14  of  1880  into  one  "  Supreme  Court  of  Judicature."  The  Supreme 
Court  has  originally  civil  and  criminal,  as  well  as  appellate,  jurisdiction, 
and  is  constituted  by  a  Chief  Justice.  Appeals  from  the  Supreme 
Court  lie  to  the  Court  of  Appeal  for  the  Windward  Islands,  and 
therefrom  to  His  Majesty  in  Council  (St.  E.  &  0.,  Eev.  1904,  vol.  xiii., 
"  Windward  Islands,"  p.  7). 

There  are  also  inferior  Courts  in  each  district  presided  over  by 
Police  Magistrates. 

Currency.— By  Order  in  Council  of  May  9,  1891  (St.  E.  &  0.,  Eev. 
1904,  vol.  ii.,  "Coin,  Colonies,"  p.  112),  silver  groats  or  fourpences, 
specially  coined  for  the  West  Indies,  were  made  current  within  the 
colony,  and  by  a  further  Order  of  February  3,  1898  {ibid.,  p.  114),  the 
Imperial  Coinage  Act,  1870,  as  amended  by  that  of  1891,  was  put  in 
force  in  the  colony.  In  addition  to  British  sterling,  United  States, 
gold  coins  are  legal  tender  under  Orders  in  .  Council  of  August  19, 
1853,  and  March  9,  1854  {ibid.,  pp.  97-99).  The  Spanish  and  Mexican 
coins,  which  were  current  under  an  Order  in  Council  of  September  14, 
1838  {ibid.,  p.  96),  were  demonetised  as  to  silver  dollars  by  an  Ordinance 
of  1879,  and  as  to  doubloons  by  St.  E.  &  0.,  1908,  No.  463. 

Application  of  Imperial  Acts. — The  Colonial  Extradition  Ordinance, 
1880  (No.  9  of  1880),  has  been  by  Order  in  Council  {iUd.,  vol.  v., 
"  Fugitive  Criminal,"  p.  314)  incorporated  with  the  Imperial  Act,  and 
St.  Vincent  has  been  {ibid.,  p.  325)  grouped  with  the  other  West  Indian 
colonies  for  the  purpose  of  the  inter-colonial  backing  of  extradition 
warrants  under  Part  II.  of  the  Fugitive  Offenders  Act,  1881. 

Probates  granted  in  St.  Vincent  are  recognised  by  the  home  Courts, 
the  Colonial  Probates  Act,  1892,  having  been  applied,  by  Order  in 
Council,  to  the  colony  {ibid.,  vol.  ii.,  "  Administration,"  p.  11).  The 
provision  of  the  Imperial  Acts  prohibiting  the  importation  of  foreign 
reprints  of  copyright  works  have  been  by  Order  in  Council  {ibid.,  vol.  ii., 
"  Copyright,"  p.  47)  suspended  in  St.  Vincent  during  the  subsistence  of 
the  Colonial  Act  (No.  34  of  1878). 

Prisoners  may,  under  an  Order  in  Council  {ibid.,  vol.  ii.,  "  Colonial 


SALE  BY  THE  COUET 


77 


I 


Prisoner,"  p.  12),  be  removed  for  punishment  from  one  of  the  Windward 
Islands  to  another,  and  under  a  Treasury  Determination  {ihid.,  vol.  ix., 
"  Pension,"  etc.,  p.  26)  the  revenues  of  the  colony  are  available  for 
superannuation  purposes. 

[^Authorities. — Colonial  Office  List ;  Journal  of  Com/parative  Legisla- 
tion, vol.  i.,  p.  177.] 

Saints'  Days.— The  Act  of  27  Hen.  vi.  c.  5,  prohibits,  on 
forfeiture  of  all  goods  or  merchandise  exposed,  the  holding  of  fairs  and 
markets  on  high  and  principal  feasts,  as  Ascension  Day,  Corpus  Christi 
Day,  "Whitsunday,  Trinity  Sunday,  and  on  other  Sundays,  and  also  on 
the  High  Feast  of  the  Assumption  of  our  Blessed  Lady,  the  Day  of  All 
Saints,  and  Good  Friday. 

The  Orders  and  Eules  of  1635  contained  regulations  respecting  the 
robes  of  the  Judges  on  saints'  days. 

See  Feasts,  Vol.  VI.  p.  39. 

Salary. — Salary  means  a  definite  payment  for  personal  services 
arising  under  some  contract,  and  computed  by  time  {jper  Bowen,  L.J., 
in  In  re  Shine,  [1892]  1  Q.  B.  529). 

Where  a  bankrupt  is  in  receipt  of  a  salary  or  income,  the  Court 
may  order  it,  or  any  part  of  it,  to  be  paid  to  the  trustee  in  bankruptcy, 
to  be  applied  by  him  in  the  manner  directed  (Bankruptcy  Act,  1883, 
s.  53,  subs.  2).    See  Bankruptcy,  Vol.  IL,  at  p.  34. 

Wages  earned  by  a  workman  in  a  colliery  are  not  "salary  or 
income  "  within  the  sub-section  {In  re  Jones,  [1891]  2  Q.  B.  231). 

Sale,  Bills  of  .—See  Bills  of  Sale. 

Sale  by  the  Court. 

TABLE  OF  CONTENTS. 


Scope  of  Article      .... 

Jurisdiction  vested  in  Chancery 
Division 

Jurisdiction  in  Foreclosure  or  Re- 
demption Actions 

Effect  of  Order  for  Sale  . 

Mode  of  Sale 

Sale  in  Actions  by  Debenture- 
Holders 

Incumbrancers 

Conduct  of  Sale 

Particulars  of  Sale , 

Abstract  of  Title ;  Reference  to 
Conveyancing  Counsel 


77 

78 

78 
79 
79 


80 
80 
81 

82 

82 


Auctioneer 

Reserved  Bidding  . 

Leave  to  Bid  . 

Result  of  Sale 

Opening  the  Biddings 

Delivery  of  Abstract,  etc. 

Payment  into  Court  of  Purchase 

Money         .... 
Dealing  with  Purchase-Money 
Settlement  of  Conveyance 
Possession       .... 
Default  of  Purchaser 


83 
83 
83 
83 

84 
84 


86 
86 
87 
87 


Scope  of  Article. — A  very  important  duty  exercised  by  the  Court  is 
that  of  carrying  out  the  sale  of  real  estate  of  the  suitors.  Of  recent 
years  various  causes  have  contributed  to  diminish  the  number  of  cases 
in  which  it  is  necessary  to  resort  to  the  Court  for  the  purpose.  The 
increased  facilities  for  selling  real  estate  conferred  by  modern  statutes 
on  owners  having  but  limited  interests,  the  wise  reluctance  of  the  Court 
to  make  orders  for  general  administration,  except  where  absolutely 
necessary,  and  the  difficulty  of  obtaining  adequate  prices  for  landed 
estates,  are  all  causes  which  have  tended  in  this  direction.  Yet,  after 
giving  full  weight  to  these  considerations,  a  reference  to  the  Judicial 
Statistics  will  prove  that  the  business  of  this  character  transacted  in 


78  SALE  BY  THE  COUKT 

the  Chancery  Division  is  very  considerable.  In  1905  the  number  of 
sales  was  309;  in  1906  there  were  sales  in  297  cases,  the  aggregate 
amounts  realised  being  £859,069,  15s.  4d.  and  £1,068,219,  3s.  Id.  respec- 
tively. In  1905  the  sales  took  place  in  ten  instances  in  the  District 
Kegistries ;  in  1906  twelve  sales  were  so  conducted. 

Sales  by  the  Court  may  be  effected  either  under  its  special  statutory 
jurisdiction  or  under  its  general  jurisdiction.  Under  the  former  head 
may  be  classed  sales  carried  out  under  the  powers  conferred  by  the 
Settled  Estates  Act,  1877,  40  &  41  Vict,  c,  18,  and  the  Partition  Acts, 
1868,  31  &  32  Vict.  c.  40,  and  1876,  39  &  40  Vict.  c.  17.  Of  the  above- 
mentioned  statutes,  the  Settled  Estates  Act  is  now  of  comparatively 
slight  importance,  owing  to  the  powers  conferred  on  tenants  for  life 
by  the  Settled  Land  Acts.  The  subject  of  sales  under  the  Partition 
Acts  has  been  fully  dealt  with  under  the  head  of  Partition,  in  Vol.  X. 
of  the  present  work. 

For  further  information  on  the  subject  of  sales  under  these  statutes, 
the  reader  is  referred  to  Dart  on  the  Law  of  Vendors  and  Purchasers, 
7th  ed.,  ch.  18.  This  article  will  be  confined  to  the  subject  of  the  sale 
of  real  estate  by  the  Court  under  its  general  jurisdiction. 

Jurisdiction  vested  in  Chancery  Division. — By  the  Judicature  Act, 
1873,  s.  34  (3),  all  causes  or  matters  for  the  purpose  of  the  sale  of 
real  estates  are  assigned  to  the  Chancery  Division  of  the  High  Court 
of  Justice. 

By  Order  51,  r.  1,  of  the  Eules  of  the  Supreme  Court,  1883,  it  is 
provided  that,  if  in  any  cause  or  matter  relating  to  real  estate  it  shall 
appear  necessary  or  expedient  that  the  real  estate  or  any  part  thereof 
should  be  sold,  the  Court  or  a  judge  may  order  the  same  to  be  sold. 
This  rule  is  in  substitution  for  sec.  55  of  the  Chancery  Procedure  Act, 
1852,  15  &  16  Vict.  c.  86,  which  has  been  repealed  by  the  Statute  Law 
Eevision  Act,  1883,  46  &  47  Vict.  c.  49,  s.  4.  That  section  was  confined 
to  cases  where  a  sale  appeared  to  be  necessary  for  the  purposes  of  the 
suit,  and  gave  power  to  the  Court  to  direct  a  sale  before  the  hearing  in 
those  cases  only  in  which  the  Court  could,  under  the  old  practice,  have 
given  such  directions  at  the  hearing  (see  Tulloch  v.  Tulloch,  1867,  L.  E. 
3  Eq.  574 ;  Mandeno  v.  Mandeno,  1853,  Kay,  App.  ii. ;  69  E.  E.  311 ;  Bell 
V.  Turner,  1876,  2  Ch.  D.  409 ;  London  and  County  Bank  v.  Dover,  1879, 
11  Ch.  D.  204).  But  though  the  rule  is  less  restricted  in  its  terms  than 
the  section,  it  does  not  give  power  to  the  Court  to  order  a  sale  where  it 
is  not  necessary  for  the  purposes  of  the  action,  nor  does  it  enable  the 
Court  to  sell  real  estate  in  cases  where  before  the  rule  it  possessed 
no  such  power  {In  re  Rohinson,  Pickard  v.  Wheater,  1885,  31  Ch,  D. 
247 ;  see,  too,  Miles  v.  Jarvis,  1883,  50  L.  T.  48).  As  to  what  is  a 
cause  or  matter  relating  to  the  sale  of  real  estate  within  the  rule,  see 
Staines  v.  Staines,  1886,  33  Ch.  D.  172. 

Jurisdiction  in  Foreclosure  or  Redemption  Actions. — In  proceedings 
for  foreclosure  or  redemption  the  power  of  the  Court  to  order  a  sale  of 
the  mortgaged  property  has  been  extended  by  sec.  25  of  the  Convey- 
ancing and  Law  of  Property  Act,  1881,  44  &  45  Vict.  c.  41.  Prior  to 
that  statute  there  was  power  under  sec.  48  of  the  Chancery  Procedure 
Act,  1852,  to  direct  a  sale  at  the  hearing  in  a  suit  for  foreclosure  upon 
the  request  of  the  mortgagee,  or  of  any  subsequent  incumbrancer,  or  of 
the  mortgagor,  or  any  person  claiming  under  them  respectively.  There 
was,  however,  no  jurisdiction  to  direct  a  sale  on  an  interlocutory  applica- 
tion before  decree  {London  ami  County  Banking  Co,  v.  Dover,  1879,  11 


I 


SALE  BY  THE  COURT  79 

Ch.  D.  204) :  and  by  the  express  terms  of  the  section,  where  the  request 
for  a  sale  was  made  by  a  subsequent  incumbrancer  or  the  mortgagor, 
the  sale  could  not  be  directed  without  the  consent  of  the  mortgagee, 
unless  a  deposit  was  paid  for  the  purpose  of  securing  the  performance 
of  such  terms  as  the  Court  might  impose  on  the  person  making  the 
request.  By  the  Conveyancing  Act,  however  (which  repealed  the  prior 
enactment),  the  provisions  for  sale  are  extended  to  redemption  actions, 
and  any  person  entitled  to  redeem  may  have  a  judgment  or  order  for 
sale  instead  of  redemption  (s.  25  (1)).  Moreover,  in  any  action,  whether 
for  foreclosure  or  for  redemption,  the  Court  may,  on  the  request  of  the 
mortgagee,  or  of  any  person  interested  either  in  the  mortgage  money 
or  in  the  equity  of  redemption,  and  notwithstanding  the  dissent  of  any 
other  person,  and  notwithstanding  that  the  mortgagee  or  any  person 
so  interested  does  not  appear,  and  without  allowing  any  time  for 
redemption,  or  for  payment  of  any  mortgage  money,  direct  a  sale  of  the 
mortgaged  property  on  such  terms  as  it  thinks  fit,  including  deposit  in 
Court  of  a  reasonable  sum  fixed  by  the  Court,  to  meet  the  expenses  of 
sale,  and  to  secure  the  performance  of  the  terms  (s.  25  (2)).  In  an 
action  brought  by  a  person  interested  in  the  right  of  redemption,  and 
seeking  a  sale,  the  Court  may,  on  the  application  of  any  defendant, 
direct  the  plaintiff  to  give  such  security  for  costs  as  the  Court  thinks 
fit,  and  may  give  the  conduct  of  the  sale  to  any  defendant,  and 
may  give  such  directions  as  it  thinks  fit  respecting  the  costs  of 
the  defendants  or  any  of  them  (s.  25  (3)).  The  Court  may  direct  a 
sale  without  previously  determining  the  priorities  of  incumbrancers 
(s.  25  (4)). 

Under  the  above  section  the  Court  can  direct  a  sale  at  any  stage  of 
the  action  before  foreclosure  absolute  (  Union  Bank  of  London  v.  Ingram, 
1882,  20  Ch.  D.  463 ;  Woolley  v.  Colman,  1882,  21  Ch.  D.  169  ;  Weston 
V.  Davidson,  1882,  W.  N.  28).  As  to  the  practice  where  the  defendant 
does  not  appear,  see  Wade  v.  Wilson,  1882,  22  Ch.  D.  235 ;  South-  Western 
District  Bank  v.  Turner,  1882,  31  W.  R.  113. 

The  discretion  reposed  in  the  Court  by  the  section  is  to  be  exercised 
judicially  {Merchant  Banking  Co.  v.  London  and  Hanseatic  Bank,  1886, 
55  L.  J.  Ch.  479 ;  Provident  Clerks  Mutual  Life  Assurance  Association  v. 
Lewis,  1893,  67  L.  T.  644;  Brewer  v.  Square,  [1892]  2  Ch.  111). 

As  to  security  for  costs  of  the  sale,  see  Woolley  v.  Colman,  1882,  21 
Ch.  D.  169 ;  Weston  v.  Davidson,  1882,  W.  N.  28 ;  Brewer  v.  Square, 
[1892]  2  Ch.  Ill ;  Cripps  v.  Wood,  1882,  51  L.  J.  Ch.  584.  In  Davies 
V.  Wright,  1886,  32  Ch.  D.  220,  North,  J.,  declined  to  order  a  mortgagor 
having  conduct  of  the  sale  to  give  security  for  costs. 

As  to  conduct  of  the  sale,  see  Woolley  v.  Colman,  1882,  21  Ch.  D. 
169 ;  Davies  v.  Wright,  1886,  32  Ch.  D.  220 ;  Brewer  v.  Square,  [1892] 
2  Ch.  Ill ;  Christy  v.  Van  Tromp,  1886,  W.  K  111 ;  Nwman  v.  Beau- 
mont, 1893,  W.  N.  45. 

Effect  of  Order  for  Sale. — An  absolute  order  for  sale  properly  made 
in  an  administration  action  operates  as  a  conversion  from  the  date  of 
the  order,  and  before  the  sale  has  actually  taken  place  {Hyett  v.  Mekin, 
1884,  25  Ch.  D.  735) ;  and  so  where  the  order  is  made  in  a  partition 
action  {In  re  Dodson,  Yates  v.  Morton,  1908,  98  L.  T.  395). 

Mode  of  Sale, — In  all  cases  where  {inter  alia)  a  sale  is  ordered,  the 
Court  or  judge  may  with  a  view  to  avoiding  expense  or  delay,  or 
for  other  good  reason,  authorise  the  same  to  be  carried  out  either 
by  laying  proposals  before   the  judge  at  chambers  for  his  sanction. 


80  SALE  BY  THE  COUET 

or  by  proceedings  altogether  out  of  Court,  any  money  produced  by 
the  sale  being  paid  into  Court  or  to  trustees  or  otherwise  dealt 
with  as  the  judge  in  chambers  may  direct.  Before,  however,  pro- 
ceedings altogether  out  of  Court  are  sanctioned,  the  Court  must  be 
satisfied  that  all  persons  interested  in  the  estate  to  be  sold  are 
before  the  Court,  or  are  bound  by  the  order  for  sale,  and  the  order 
authorising  the  proceedings  must  be  prefaced  by  a  declaration  that  the 
judge  is  so  satisfied,  and  a  statement  of  the  evidence  on  which  such 
declaration  is  made  (Order  51,  r.  1a).  As  to  the  terms  usually  imposed 
where  a  sale  is  directed  out  of  Court,  see  Pitt  v.  White,  1887,  57  L.  T. 
650 ;  In  re  Stedman,  Coombe  v.  Vincent,  1888,  58  L.  T.  709.  As  a  rule, 
however,  a  sale  will  not  be  directed  to  take  place  out  of  Court  unless 
all  parties  are  sui  juris  and  consent.  Experience  has  proved  that, 
generally,  better  prices  are  obtained  on  a  sale  under  the  Court  than  on 
one  by  the  parties  out  of  Court  (see  observations  of  Chitty,  J.,  in  Strug- 
nell  v.  Strugnell,  1884,  27  Ch.  D.  258).  In  general  directions  will  be 
given  that  the  sale  shall  take  place  by  public  auction.  There  is,  how- 
ever, ample  jurisdiction  to  dispose  of  the  property  in  the  method  which 
appears  most  advantageous  under  the  particular  circumstances.  Thus 
the  Court  will  confirm  a  contract  for  sale  to  a  private  buyer  if  on  the 
evidence  it  is  satisfied  that  the  price  offered  is  as  much  as  would  be 
realised  at  a  sale  by  auction.  Where  all  parties  interested  are  before 
the  Court,  and  desire  that  method  of  sale,  it  may  be  directed  to  take 
place  before  the  Master  in  chambers  (Femherton  v.  Barnes,  1872,  L.  E. 
13  Eq.  349);  or  it  may  be  effected  by  means  of  sealed  tenders  sent  into 
chambers  to  be  opened  by  the  Master  (Barlow  v.  Osborne,  1858,  6  H.  L. 
556 ;  10  E.  E.  1412).  Where  the  order  for  sale  indicates  a  particular 
method  of  carrying  it  out,  a  fresh  order  is  necessary  before  the  property 
can  be  realised  in  any  other  manner  (Berry  v.  Gibbons,  Ex  parte  Lee, 
1872,  L.  E.  15  Eq.  150).  The  sale  may  be  ordered  to  take  place  in  a 
district  registry,  but  it  is  entirely  within  the  discretion  of  the  judge 
who  tries  the  action  to  give  directions  on  the  subject,  and  his  discretion 
will  not  be  interfered  with  by  the  Court  of  Appeal  (Macdonald  v.  Foster, 
1877,  6  Ch.  D.  193). 

Sale  in  Actions  by  Debenture-Holders. — It  is  provided  by  Order  51, 
r.  1b,  that  in  debenture-holders'  actions,  where  the  debenture-holders 
are  entitled  to  a  charge  by  virtue  of  the  debentures,  or  of  a  trust-deed, 
or  otherwise,  and  the  plaintiff  is  suing  on  behalf  of  himself  and  other 
debenture-holders,  and  where  the  judge  in  person  is  of  opinion  that 
there  must  eventually  be  a  sale,  he  may  in  his  discretion  direct  a  sale 
before  judgment,  and  also  after  judgment,  before  all  persons  interested 
are  ascertained,  whether  served  or  not. 

The  rule  does  not  apply  where  the  plaintiff  is  sole  debenture-holder 
(FarUnson  v.  Wainwright,  [1895]  64  L.  J.  Ch.  493). 

A  sale  has  been  directed  on  motion  for  judgment,  on  admissions  in 
the  pleadings,  on  proof  of  insolvency,  and  jeopardy  of  the  security ;  in 
such  case  an  affidavit  of  the  admitted  allegations  was  required  (In  re 
Day  and  Night  Advertising  Co.,  [1900]  48  W.  E.  362).  But  unless  all  the 
debenture-holders  subsequent  to  the  plaintiff  are  parties,  the  order  will 
be  for  sale  with  the  approbation  of  the  judge,  so  that  the  absent  deben- 
ture-holders may  be  brought  in  in  chambers  on  the  sale  (In  re  Criggle- 
stone  Coal  Co. ;  Stewart  v.  2'he  Company,  [1906]  1  Ch.  533).  See  further. 
Debenture,  Vol.  IV. 

Incumbrancers. — The  common  form   of  order   for   sale  directs   the 


SALE  BY  THE  COUET  81 

property  to  be  sold  free  from  the  incumbrances  of  such  of  the  incum- 
brancers as  consent,  and  subject  to  the  incumbrances  of  such  as  do  not 
consent,  and  an  inquiry  is  usually  directed  as  to  the  incumbrancers  and 
their  priorities.  An  incumbrancer  consenting  to  the  sale  will  be  paid 
his  principal,  interest,  and  costs  out  of  the  purchase-money  of  the 
property,  subject  to  his  charge  in  priority  to  the  costs  of  the  action 
{Hepworth  v.  Heslop,  1844,  3  Hare,  485 ;  67  E.  E.  472 ;  In  re  Mackinlay, 
Ward  V.  Mackinlay,  1864,  2  De  G.,  J.  &  S.  358 ;  46  E.  E.  414).  He  is 
entitled  to  interest  for  six  months  from  the  date  of  his  consent,  or  up  to 
the  time  of  payment,  if  the  sale  takes  place  after  the  expiration  of  six 
months  from  such  date  {Day  v.  Day,  1862, 31  Beav.  270 ;  54  E.  E.  1142). 
An  incumbrancer  who  has  consented  to  the  sale  is  bound  to  facilitate 
it,  and  to  produce  the  deeds  of  the  property  {Livesey  v.  Harding,  1839, 

1  Beav.  343 ;  48  E.  E.  972).  See  Daniell's  Ch.  Fr.,  p.  873.  Under  the 
Conveyancing  and  Law  of  Property  Act,  1881,  in  the  case  of  the  sale  of 
land  subject  to  any  incumbrance,  the  Court  may,  on  the  application 
of  any  party  to  the  sale,  make  provision  for  payment  into  Court  of 
a  sufficient  sum  to  provide  for  the  incumbrance,  together  with  a  sum 
not  exceeding  one-tenth  of  the  amount  to  be  paid  in,  to  meet  the  con- 
tingency of  further  costs,  expenses,  and  interest,  and  any  other  con- 
tingency, except  depreciation  of  investments.  Thereupon  the  Court  may 
declare  the  land  to  be  freed  from  the  incumbrance,  and  make  any  order 
for  conveyance,  or  vesting  order  proper  to  give  effect  to  the  sale,  and 
give  directions  for  the  retention  and  investment  of  the  money  in  Court 
(8.  5).  See  Patching  v.  Bull,  1882,  30  W.  E.  244 ;  Dickin  v.  Dickin,  1882, 
30  W.  E.  887;  Milford  Haven  Ely.  and  Estate  Co.  y.Mowatt,  1884,  28  Ch.  D. 
402.  The  Court  will  not  oblige  a  vendor  to  pay  money  under  the 
section  for  the  purpose  of  discharging  an  incumbrance,  where  to  do 
so  would  inflict  great  hardship  on  him  {In  re  Great  Northern  Rly.  Co. 
and  Sanderson,  1884,  25  Ch.  D.  788). 

Conduct  of  Sale. — In  the  case  of  a  sale  in  an  action  for  the  adminis- 
tration of  the  estate  of  a  deceased  person,  or  for  execution  of  the  trusts 
of  a  written  instrument,  the  conduct  of  the  sale  will  be  given  to  any 
executor,  administrator,  or  trustee  in  whom  the  property  is  vested, 
unless  the  Court  otherwise  directs  (Order  50,  r.  10).  In  other  cases  it 
is  ordinarily  committed  to  the  plaintiff  or  other  party  having  carriage 
of  the  order  {Knott  v.  Cottce,  1859,  27  Beav.  33;  54  E.  E.  13);  even 
though  in  a  sale  out  of  Court  he  would  not  be  the  proper  person  to 
conduct  it  {Dale  v.  Hamilton,  1853,  10  Hare,  App.  I.  vii. ;  68  E.  E. 
1116).  In  partition  actions  the  conduct  is  almost  invariably  given 
to  the  plaintiff.  But  a  party  having  leave  to  bid  at  the  sale  will 
not   be   intrusted  with   conduct   of   it   {Domville  v.  Beorington,  1837, 

2  Y.  &  C.  723;  and  see  Sidny  v.  Banger,  1841,  12  Sim.  118;  59  E.  E. 
1076).  The  Court  has  an  absolute  discretion  in  the  matter,  and  will 
give  the  conduct  to  such  one  of  the  parties  as  in  the  interest  of  all  it 
considers  most  suitable  {Knott  v.  Cottee,  1859,  27  Beav.  33 ;  54  E.  E.  13 ; 
Dixon  V.  Fyner,  1850,  7  Hare,  331 ;  68  E.  E.  135).  The  Court  of  Appeal 
ought  not  to  interfere  with  the  discretion  of  the  judge  as  to  who  is  to 
have  the  conduct  of  a  sale,  unless  there  are  some  very  extraordinary 
circumstances  that  require  it  to  do  so  {per  Cotton,  L.J.,  I71  re  Love, 
Hill  V.  Spurgeon,  1885,  29  Ch.  D.  p.  349).  As  to  conduct  of  sale  in 
actions  for  foreclosure  or  redemption,  see  Conveyancing  Act,  1881,  s.  25 
(2),  (3);  Woolley  v.  Colman,  1882,  21  Ch.  D.  169;  Davies  v.  Wright, 
1886,  32  Ch.  D.  220.    In  the  event  of  all  parties  having  liberty  to  bid, 

VOL.  XIII.  /  6 


82  SALE  BY  THE  COUKT 

the  Court  will  nominate  some  independent  solicitor  to  conduct  the  sale, 
and  in  such  case  it  is  usual  for  the  official  solicitor  to  be  appointed  for 
the  purpose  (see  Official  Solicitor).  Where  conduct  is  given  to  one 
party  to  the  action,  no  other  party  is  entitled  to  interfere  in  the  sale 
without  the  leave  of  the  Court  (Dean  v.  Wilson,  1878,  10  Ch.  D.  136). 
The  solicitor  of  the  party  having  conduct  is,  as  between  vendor  and 
purchaser,  considered  agent  for  all  parties  to  the  action  {Balhy  v.  Pullen, 
1830,  1  Russ.  &  M.  296;  39  E.  R.  114). 

Particulars  of  Sale. — It  is  the  duty  of  the  solicitor  for  the  party 
having  conduct  to  prepare  and  bring  into  chambers  the  particulars  of  sale, 
showing  the  proposed  method  of  lotting  the  property,  and  the  incum- 
brances affecting  each  part  thereof,  and  generally  giving  such  information 
as  is  usual  in  the  case  of  sales  not  under  the  direction  of  the  Court.  See 
Particulars  of  Sale. 

Abstract  of  Title;  Reference  to  Conveyancing  Counsel. — Before  any 
estate  is  put  up  for  sale  under  a  judgment  or  order  an  abstract  of  the  title 
thereto  must,  unless  otherwise  directed,  be  laid  before  some  conveyancing 
counsel  approved  by  the  Court  or  judge  for  his  opinion  thereon,  to  enable 
proper  directions  to  be  given  respecting  the  conditions  of  sale,  and  other 
matters  connected  with  the  sale.  A  time  for  the  delivery  of  the  abstract 
to  the  purchaser  or  his  solicitor  is  to  be  specified  in  the  conditions  of  sale 
(Order  51,  r.  2).  As  a  rule,  the  abstract  is  directed  to  be  submitted  to 
one  of  the  conveyancing  counsel  of  the  Court,  as  to  whom,  see  Order  51, 
rr.  7-13,  and  see  Conveyancing  Counsel  of  the  Court.  The  rule  (which 
is  taken  from  sec.  56  of  the  Chancery  Procedure  Act,  1852)  is  not 
imperative  but  discretionary  only  {Gibson  v.  Woollard,  1854,  5  De  G., 
M.  &  G.  835 ;  43  E.  R.  1094).  In  addition  to  the  ordinary  conditions  of 
sale  (as  to  which  see  R.  S.  C,  1883,  App.  L,  No.  15),  the  conveyancing 
counsel  will  prepare  such  special  conditions  as  the  state  of  the  title  renders 
necessary.  He  will  see  that  the  title  is  one  which  can  be  properly  offered 
to  a  purchaser ;  for  it  is  a  rule  with  the  Court  that  it  will  not  knowingly 
pass  off  an  absolutely  bad  title  by  the  aid  of  special  conditions  {Hume 
V.  Bentley,  1852, 5  De  G.  &  Sm.,  p.  527 ;  64  E.  R.,  p.  1228;  Nunn  v.  Hancock, 
1871,  L.  R.  6  Ch.  850 ;  Else  v.  Else,  1871,  L.  R.  13  Eq.  196 ;  Dart,  p.  1164). 
"  I  think,  where  the  sale  is  by  the  Court,  the  Court  is  bound  to  take 
more  especial  care,  if  possible,  that  there  shall  be  nothing  in  the  con- 
ditions or  in  the  representations  therein  contained  which  by  possibility 
can  mislead  a  purchaser,  because  the  purchaser  has  a  right  to  assume 
that  the  Court  will  take  very  good  care  that  there  shall  be  nothing  that 
can  in  any  way  mislead  him  as  to  the  title  he  is  getting  {per  Cotton, 
L.J.,  In  re  Banister,  Broad  v.  Munton,  1879,  12  Ch.  D.  150).  In  conse- 
quence of  the  rule  above  stated  it  is  the  practice,  at  any  rate  in  some 
branches  of  the  Court,  upon  an  application  to  confirm  a  conditional 
contract  not  to  do  so  absolutely  in  the  first  instance,  but  provisionally 
on  the  purchaser  accepting  the  title,  except  where  the  contract  has  been 
settled  by  the  conveyancing  counsel,  or  the  sale  is  under  conditions 
which  have  been  already  approved  and  settled  by  him.  This  course  has 
been  found  very  convenient  in  practice,  and  avoids  difficulties  which 
might  arise  if  it  should  turn  out  that  a  doubtful  title  is  being  forced  on 
a  purchaser.  As  between  vendor  and  purchaser,  the  conveyancing 
counsel  is  treated  as  the  agent  of  the  vendor  {In  re  Banister,  Broad  v. 
Munton,  1879,  12  Ch.  D.  131).  The  conditions  of  sale  having  been  pre- 
pared by  the  conveyancing  counsel  are  finally  settled  by  the  Master,  who 
will  fix  the  time  and  place  of  sale,  and  direct  what  advertisements  shall 


SALE  BY  THE  COUKT  83 

be  issued.  The  particulars  and  conditions  must  be  printed,  and  two 
certified  copies  left  at  chambers  (Order  51,  r.  5). 

Auctioneer. — The  Master  will  also  appoint  the  auctioneer  to  conduct 
the  sale,  and  fix  the  remuneration  to  be  paid  to  him.  Such  remuneration 
is,  in  some  of  the  chambers,  allowed  according  to  a  fixed  scale  dependent 
on  the  value  of  the  property  sold  {In  re  Walford,  Walford  v.  Walford, 
1888,  59  L.  T.  397).  But  the  practice  is  not  uniform  in  this  respect,  it 
being  considered  in  the  chambers  of  some  of  the  judges  that  each  case 
should  be  dealt  with  on  its  merits,  and  that  remuneration  fixed  according 
to  the  nature  and  magnitude  of  the  business  to  be  transacted  is  more  just 
and  reasonable  than  remuneration  regulated  by  a  hard-and-fast  rule,  and 
dependent  solely  upon  the  amount  realised  by  the  sale.  The  auctioneer 
is  required  to  give  security  for  the  amount  of  deposits  which  are  likely 
to  come  to  his  hands.  An  auctioneer  employed  by  the  Court  is  not 
entitled  to  commission  on  a  sale  effected  after  the  auction,  even  though 
within  a  reasonable  time  thereafter,  and  before  recognisance  vacated,  if 
such  sale  is  not  effected  by  the  auctioneer  himself  or  on  his  introduction 
{In  re  Maitland,  Pickthall  v.  Dawes,  [1903]  W.  N".  143). 

Reserved.  Bidding. — Where  a  judgment  or  order  directs  any  property 
to  be  sold,  the  same  is  to  be  sold,  with  the  approbation  of  the  judge,  to 
the  best  purchaser  that  can  be  got  (Order  51,  r.  3).  On  a  sale  by  auction, 
therefore,  the  sale  will  be  subject  to  a  reserved  bidding  fixed  upon  proper 
evidence  by  the  Master  in  chambers ;  and  on  an  application  to  confirm  a 
sale  by  private  contract  he  will  require  to  be  satisfied  by  similar  evidence 
that  the  price  offered  is  adequate.  An  affidavit  for  the  purpose  of  enabling 
the  Court  to  fix  the  reserves  must  state  the  value  of  the  property  by  refer- 
ence to  an  exhibit  containing  such  value,  so  that  it  may  not  be  disclosed 
by  the  affidavit  when  filed  (Order  51,  r.  4). 

Leave  to  Bid. — Any  party  to  the  action  desiring  to  bid  at  the  sale 
should  obtain  leave  to  do  so  {Elivorthy  v.  Billing,  1841,  10  Sim.  98 ; 
59  E.  K.  550).  As  a  rule,  such  leave  will  not  be  granted  to  a  party 
having  conduct  of  the  sale  {Bomville  v.  Berrington,  1837,  2  Y.  &  C. 
723);  nor  to  a  trustee,  except  under  special  circumstances  {Tennant  v. 
Trenchard,  1869,  L.  R.  4  Ch.  535) ;  nor  to  an  executor  in  an  adminis- 
tration action  {Geldard  v.  Randall,  1845,  9  Jur.  1085) ;  nor  to  the 
solicitor  of  a  party  who  is  himself  unable  to  bid  {Guest  v.  Smythe,  1870, 
L.  R.  5  Ch.  551) ;  nor  to  a  receiver  {Alven  v.  Bond,  1841,  Flan.  &  K.  196). 
Where  leave  to  bid  was  given  to  the  solicitor  to  a  party  to  the  action, 
it  was  held  that  the  effect  of  the  order  and  subsequent  approval  of  a 
•contract  for  sale  to  such  solicitor  was  to  put  an  end  to  the  fiduciary 
relation  in  which  he  formerly  stood,  and  to  place  him  in  the  position 
of  a  mere  stranger  {Boswell  v.  Coaks,  1883,  23  Ch.  D.  302 ;  Coaks  v. 
Boswell,  1886,  11  App.  Cas.  p.  242). 

Result  of  Sale. — The  auctioneer  appointed  by  the  Court  proceeds  at 
the  time  and  place  fixed  by  the  particulars  of  sale  to  offer  the  property, 
and,  in  the  event  of  the  biddings  for  any  lot  exceeding  the  amount  of  the 
reserve  fixed  by  the  Court,  the  highest  bidder  will  be  declared  the 
purchaser.  The  result  of  the  sale  must  then  be  certified  under  the  hands 
of  the  auctioneer  and  of  the  solicitor  of  the  party  conducting  the  sale. 
Such  certificate  must  be  left  at  the  chambers  of  the  judge  to  whom  the 
action  is  assigned  at  least  one  clear  day  before  the  day  appointed  for 
certifying  the  results  (Order  51,  rr.  6,  6a).  On  the  appointed  day  the 
certificate  of  result  of  sale  will  be  settled,  and  subsequently  signed  and 
filed  in  the  usual  way.     Provision  will  also  be  made  for  the  deposits 


84  SALE  BY  THE  COURT 

received  by  the  auctioneer  being  brought  into  Court.  It  is  within  the 
authority  of  the  soHcitor  to  apply  to  the  auctioneer  for  the  deposits  for 
the  purpose  of  paying  them  into  Court,  and  on  default  of  the  solicitor 
in  paying  in  deposits  received  by  him,  the  auctioneer  will  not  be  held 
liable  for  the  loss  {Bigqs  v.  Bree,  1882,  51  L.  J.  Ch.  263 ;  Brown  v. 
Farebrother,  1888,  59  L.  T.  822). 

Until  the  certificate  of  the  Master  becomes  binding,  the  liabilities  of  an 
owner  do  not  attach  to  a  purchaser  {Ex  parte  Minor,  1805,  11  Ves.  559 ; 
32  E.  E.  1205 ;  9  E.  E.  247,  where  it  was  held  that  loss  by  fire  after 
report,  but  before  confirmation,  fell  on  the  vendor;  Twigg  v.  Fijield, 
1807,  13  Ves.  517;  33  E.  E.  388).  After  certificate,  the  position  of  the 
parties  is  altered,  and  any  loss  occurring  falls  on  the  purchaser,  in  the 
absence  of  fault  of  the  vendor  {Eolertson  v.  Skelton,  1849,  12  Beav.  260 ; 
50  E.  E.  1061).  In  the  case  of  the  purchase  of  a  life  interest  the 
purchaser  is  liable  from  the  date  of  the  sale  and  not  from  the  time  when 
the  certificate  becomes  absolute  {Anson  v.  Towgood,  1820,  1  Jac.  &  W. 
637;  37E.  E.  511). 

Opening  the  Biddings.  —  Under  the  old  practice  of  the  Court  of 
Chancery,  where  a  person,  before  the  certificate  of  result  had  become 
binding,  came  forward  and  offered  a  higher  price  than  the  sum  for  which 
the  property  had  been  sold,  the  biddings  were  opened,  that  is,  a  resale 
was  directed.  This  might  be  done  in  any  case,  except  where  the  sale 
was  by  private  contract  {Barlow  v.  Osborne,  1858,  6  H.  L.  C.  556 ;  10 
E.  E.  1412 ;  Waterhouse  v.  Wilkinson,  1864, 1  Hem.  &  M.  636 ;  71  E.  E. 
278 ;  Millican  v.  Vanderplanh,  1853, 11  Hare,  136 ;  68  E.  E.  1219).  The 
practice,  however,  which  had  long  been  viewed  with  disfavour  by  the 
Courts,  has  been  abolished  by  express  statutory  provision.  For,  by 
the  Sale  of  Land  by  Auction  Act,  1867,  30  &  31  Vict.  c.  48,  s.  7,  it  is 
provided  that  such  practice  shall,  after  August  1,  1867,  be  discontinued, 
and  the  highest  honA-fide  bidder  who  has  bid  a  sum  equal  to  or  higher 
than  the  reserved  price,  if  any,  shall  be  declared  the  purchaser,  unless 
the  Court  shall,  on  the  ground  of  fraud  or  improper  conduct  in  the 
management  of  the  sale,  either  open  the  biddings,  holding  such  bidder 
bound  by  his  bidding,  or  discharge  him  from  being  the  purchaser,  and 
order  the  land  to  be  resold  upon  such  terms  as  to  costs  or  otherwise 
as  the  Court  shall  think  fit  (see  Griffiths  v.  Jones,  1873,  L.  E.  15  Eq. 
279 ;  Delves  v.  Delves,  1875,  L.  E.  20  Eq.  77 ;  Broivn  v.  Oakshott,  1869, 
38  L.  J.  Ch.  717).  The  principle  of  the  Act  applies  to  the  case  of  a 
sale  by  private  contract  entered  into  under  the  sanction  of  the  Court 
{In  re  Bartlett,  Newman  v.  Hook,  1880,  16  Ch.  D.  561 ;  In  re  Oriental 
Bank  Corporation,  1887,  56  L.  T.  868). 

Delivery  of  Abstract,  etc. — After  the  certificate  of  sale  has  become- 
binding,  it  is  the  duty  of  the  solicitor  conducting  the  sale,  within  the 
time  specified  in  the  conditions  of  sale,  to  deliver  to  the  purchaser  or 
his  solicitor  an  abstract  of  the  title  to  the  property.  The  title  will 
be  investigated  in  the  usual  way,  and  in  due  course  the  purchaser's 
requisitions  and  objections  thereon  will  be  sent  in.  In  the  event  of 
any  point  arising  which  cannot  be  satisfactorily  disposed  of  between 
the  parties,  the  proper  course  is  for  a  summons  to  be  issued,  or  an 
appointment  obtained,  before  the  Master,  to  consider  the  objections- 
raised  by  the  purchaser;  when,  if  necessary,  the  opinion  of  the  con- 
veyancing counsel  may  be  obtained,  and  the  question  settled,  it  being 
open,  of  course,  to  either  party  to  have  the  matter  in  dispute  referred  ta 
the  judge,  either  in  chambers  or  in  Court,  for  his  decision.     Sometimes- 


SALE  BY  THE  COUKT  "85 

the  course  adopted  is  that  the  party  conducting  the  sale  issues  a  summons 
for  an  order  on  the  purchaser  to  pay  his  purchase-money  into  Court. 
Occasionally  recourse  is  had  to  the  procedure  under  the  Vendor  and 
Purchaser  Act,  1874,  37  &  38  Vict.  c.  78.  It  is  conceived,  however,  that 
such  a  course  is  unnecessary,  and  that  there  is  ample  jurisdiction  to  dispose 
of  all  questions  arising  on  the  title  in  the  action  or  matter  in  which  the 
order  for  sale  has  been  made. 

In  this  connection  it  may  be  mentioned  that  objections  for  want  of 
parties  and  the  like,  which  under  the  former  practice  were  of  common 
occurrence  (Daniell's  Ch.  Pr.,  5th  ed.,  p.  1165),  are  not  now  open  to  a 
purchaser.  For  by  sec.  70  of  the  Conveyancing  and  Law  of  Property 
Act,  1881,  an  order  of  the  Court  under  any  statutory  or  other  jurisdiction 
will  not,  as  against  a  purchaser,  be  invalidated  on  the  ground  of  want 
of  jurisdiction,  or  of  want  of  any  concurrence,  consent,  notice,  or  service, 
whether  the  purchaser  has  notice  of  any  such  want  or  not.  The  section 
is  applicable  whether  the  objection  to  the  order  appears  on  the  face  of 
it  or  not  {In  re  Hall  Dare's  Contract,  1882,  21  Ch.  D.  41 ;  see,  too, 
Mostyn  v.  Mostyn,  [1893]  3  Ch.  376).  The  section  does  not  operate  to 
give  a  good  title  to  a  purchaser  at  a  sale  under  an  order  of  the  Court 
when  the  Court  in  making  the  order  supposed  that  it  was  dealing  with 
an  interest  belonging  to  a  party  before  it,  though  it  in  fact  belonged  to 
a  person  not  a  party  to  the  proceedings  and  not  bound  by  them  {Jones 
V.  Barnett,  [1900]  1  Ch.  370,  affirming  [1899]  1  Ch.  611). 

Under  the  conditions  of  sale  ordinarily  in  use  in  the  case  of  a  sale 
under  the  Court,  power  is  usually  reserved  to  the  vendor,  with  the 
sanction  of  the  judge,  to  rescind  the  contract,  on  such  terms  as  the  judge 
shall  direct,  in  the  event  of  the  purchaser  insisting  on  any  objection  or 
requisition  which  the  vendor  cannot  or  declines  to  remove  or  comply 
with,  or  that  an  order  may  be  made  discharging  the  purchaser.  The 
purchaser  in  such  case  will  be  entitled  to  the  return  of  his  deposit ;  but 
the  conditions  generally  provide  that  he  shall  not  be  entitled  to  interest, 
costs,  expenses,  or  damages  in  respect  of  his  purchase  (Daniell's  Forms, 
p.  640).  Where  the  Court  accedes  to  an  application  by  the  purchaser 
to  be  discharged  from  his  contract  on  the  ground  of  misrepresentation, 
the  vendor  cannot  avail  himself  of  his  power  to  rescind  under  the  con- 
tract ;  and  the  costs  recoverable  by  the  purchaser  include,  besides  the 
costs  of  investigating  the  title,  the  costs  occasioned  to  the  purchaser  by 
his  bidding  for  and  becoming  the  purchaser  of  the  property  {Holliwell  v. 
Seacombe,  [1906]  1  Ch.  426 ;  see  also  Calvert  v.  Godfrey,  1842,  6  Beav. 
97;  49  E.  Pt.  761;  Perkins  v.  Ede,  1852,  16  Beav.  268;  51  E.  R  781 ; 
Powell  V.  Powell,  1875,  L.  R.  19  Eq.  422).  Where  there  is  a  fund  in 
Court  the  costs  of  the  purchaser  will  be  directed  to  be  paid  thereout 
{Reynolds  v.  Blake,  1824,  2  Sim.  &  St.  117 ;  57  E.  R.  290).  If  there 
be  no  fund  in  Court,  an  order  may  be  made  for  payment  of  the  costs 
by  the  plaintiff,  without  prejudice  to  the  question  how  they  should 
ultimately  be  borne  {Smith  v.  Nelson,  1826,  2  Sim.  &  St.  557 ;  57  E.  K. 
458 ;  25  R.  R.  266).  But  a  defendant,  to  whom  the  conduct  of  a  sale 
under  a  judgment  has  been  given,  will  not  be  ordered  to  pay  the  pur- 
chaser's costs  where  there  are  no  funds  in  Court  {Mullins  v.  Hitssey, 
1866,  L.  R.  1  Eq.  488).  See  further,  Daniell's  Ch.  Pr.,  pp.  887,  888, 1016 ; 
Dart,  pp.  1173-1175  ;  Seton,  pp.  359,  360  ;  Morgan  and  Wurtzburg  on 
Costs,  pp.  380,  381. 

The  ordinary  condition  of  sale  for  compensation  in  case  of  any  error 
or  misstatement  in  the  particulars  or  conditions  of  sale  does  not  apply 


86  SALE  BY  THE  COUET 

to  the  case  of  a  defect  of  title,  but  only  to  error  or  misstatement  in  the 
subject-matter  of  the  sale  (Dehenham  v.  Sawhridge,  [1901]  2  Ch.  98). 

Payment  into  Court  of  Purchase-Money. — Formerly  it  was  the  practice 
for  the  purchaser,  so  soon  as  he  had  completed  the  investigation  of  the 
title,  to  obtain  an  order  for  payment  into  Court  of  the  balance  of  his 
purchase-money,  such  order  being  usually  termed  a  "  purchaser's  order." 
Now,  however,  no  order  for  payment  into  Court  of  purchase-money  is 
necessary,  but  a  direction  for  that  purpose,  signed  by  a  Master,  is  sufh- 
cient  authority  for  the  Paymaster-General  to  receive  the  money  (Order 
51,  r.  3a).  Such  direction  is  in  the  form  of  a  Pay  Office  lodgment 
schedule,  and  operates  as  an  order  (Supreme  Court  Funds  Eules,  1905, 
r.  5). 

As  a  general  rule,  a  purchaser  will  not  be  permitted  to  pay  his  pur- 
chase-money into  Court  until  he  has  accepted  the  title.  Under  special 
circumstances,  however,  an  order  may  be  made,  giving  him  liberty  to 
pay  in  without  prejudice  to  his  acceptance  of  the  title  {Denning  v. 
Henderson,  1847,  1  De  G.  &  Sm.  689 ;  63  E.  E.  1252 ;  Butter  v.  Marriott, 
1846,  10  Beav.  33  ;  50  E.  E.  494).  He  will  not  be  let  into  possession 
until  the  title  is  accepted  {Sutton  v.  Mansell,  1840,  2  Beav.  260 ;  48  E.  E. 
1180 ;  Dempsey  v.  Dempsey,  1847,  1  De  G.  &  Sm.  691;  63  E.  E.  1253). 
If  a  purchaser  enters  into  possession  without  the  leave  of  the  Court,  he 
will  be  considered  to  have  waived  all  objections  to  the  title  ( Wilding 
v.  Andrews,  1838,  1  Coop.  {temp.  Cott.)  380;  47  E.  E.  906). 

A  purchaser  is  required,  under  the  ordinary  conditions  of  sale,  to  pay 
interest  oh  the  balance  of  his  purchase-money  from  the  day  fixed  for  pay- 
ment into  Court.  In  a  sale  under  the  direction  of  the  Court,  a  purchaser 
is  not  entitled  to  set  off  rents  and  profits  against  interest  {In  re  Smith, 
Day  V.  Bonaini,  1886,  54  L.  T.  567 ;  55  L.  T.  329). 

Dealing  with  Purchase- Money. — The  purchaser's  order  or  lodgment 
schedule,  under  which  the  purchase-money  is  paid  into  Court,  usually 
provides  that  such  purchase-money  shall  not  be  dealt  with  without  notice 
to  the  purchaser.  It,  however,  usually  provides  for  investment  of  the 
purchase-money,  and  it  should  be  stated  at  whose  request  such  invest- 
ment is  made.  When  the  conveyance  has  been  finally  completed  and 
delivered  to  the  purchaser,  the  vendor's  solicitor  should  obtain  from  him 
an  authority  to  deal  with  the  purchase-money ;  otherwise  he  will  have 
to  be  served  with  notice  of  any  petition,  summons,  or  other  application 
for  distribution  of  the  monej''.  Whether  he  will  be  entitled  to  his  costs 
of  appearing  on  such  an  application  will  depend  upon  whether  or  not 
he  has  obtained  his  conveyance  {Bamford  v.  Watts,  1840,  2  Beav.  201 ; 
48  E.  E.  1157;  Nolle  v.  Stow,  1861,  30  Beav.  272;  54  E.  E.  894;  Barton 
V.  Latour,  1854,  18  Beav.  526 ;  52  E.  E.  207). 

Settlement  of  Conveyance. — In  case  of  dispute  between  the  vendor  and 
purchaser  as  to  the  form  of  the  conveyance  or  the  necessary  parties 
thereto,  it  must  be  settled  by  the  judge.  For  that  purpose  the  draft  is 
brought  into  chambers,  with  a  statement  of  the  points  in  dispute,  which 
will  be  referred  to  one  of  the  conveyancing  counsel  of  the  Court.  A 
purchaser  has,  except  under  special  circumstances,  to  bear  his  own  costs 
of  getting  a  conveyance  settled  by  the  judge  {Hodgson  v.  Shaiv,  1847,  11 
Jur.  95).  An  order  settling  a  form  of  conveyance  is  subject  to  appeal 
{Pollock  V.  BaUits,  1882,  21  Ch.  D.  466). 

As  to  obtaining  orders  under  the  Trustee  Act,  1893,  s.  30,  vesting  the 
lands  in  the  purchaser,  or  under  sec.  33,  appointing  a  person  to  convey, 
see  Vesting  Oedek. 


SALE  OF  GOODS 


87 


Possession. — Any  party  bound  by  the  order  for  sale  and  in  possession 
of  the  estate,  or  in  receipt  of  the  rents  and  profits  thereof,  may  be  com- 
pelled to  deliver  up  such  possession  or  receipt  to  the  purchaser,  or  such 
other  person  as  may  by  the  order  be  directed  (Order  51,  r.  1).  If  any 
party  refuses  to  deliver  possession,  after  being  served  with  the  order 
directing  possession  to  be  given  to  the  purchaser,  a  writ  of  possession 
may  be  issued  (Order  42,  r.  5  ;  Order  47). 

Default  of  Purchaser. — If  the  purchaser  makes  default  in  payment 
of  his  purchase-money  and  completion  of  the  purchase,  the  vendor  may 
apply  for  an  order  for  payment  by  a  day  named,  and  in  default  for  a 
resale  of  the  property,  any  deficiency  on  such  resale  and  all  costs  and 
expenses  occasioned  by  the  default  being  paid  by  the  purchaser.  The 
order  for  resale  does  not  direct  the  purchaser  to  be  discharged  {Harding 
V.  HardiTig,  1838,  4  Myl.  &  Cr.  514 ;  41  E.  K.  198).  And  after  an  order 
for  a  resale,  a  purchaser  has  been  allowed  to  complete  his  purchase 
{Pobertson  v.  Skelton,  1850,  13  Beav.  91 ;  51  E.  R  36). 

[Authorities. — The  Annual  Practice,  notes  to  Order  51 ;  Daniell, 
Chancery  Practice,  7th  ed.,  1901,  pp.  872-905 ;  Daniell,  Forms,  5th  ed., 
1901,  pp.  632-676 ;  Dart,  Vendors  and  Purchasers,  7th  ed.,  1905,  ch.  xix. ; 
Morgan  and  Wurtzburg  on  Costs,  1882,  pp.  377-381 ;  Seton,  Judgments 
and  Orders,  6th  ed.,  1901,  ch.  xix.] 


Sale  of  Goods. 


TABLE  OF  CONTENTS. 


Definitions      .... 

87 

Capacity  of  Parties 
Formalities     .... 

88 
88 

Subject- Matter  of  Sale   . 
The  Price        .... 

90 
90 

Stipulations  as  to  Time  . 
Conditions  and  Warranties     . 

90 
91 

(a)  As  to  Title 

(b)  As  to  Quality  or  Fitness 

91 
92 

When  the  Property  passes 

Jus  disponendi 

Risk  of  Loss   .... 

Transfer  of  Title    . 

Performance  .... 

Rights  of  Unpaid  Seller  against  the 

Goods  .... 

Remedies  of  Seller 
Remedies  of  Buyer 


95 
97 
97 
97 
99 

101 
102 
103 


The  law  relating  to  the  sale  of  goods  was  codified  in  1893  by  the 
Sale  of  Goods  Act  of  that  year  (56  &  57  Vict.  c.  71) ;  and  the  sections 
referred  to  in  this  article  are  sections  of  that  Act,  except  where  the 
contrary  is  expressly  mentioned. 

Definitions. — A  contract  of  sale  of  goods  is  a  contract  whereby  the 
seller  transfers  or  agrees  to  transfer  the  property  in  goods  to  the  buyer 
for  a  consideration  in  money,  which  is  called  the  price  (see  Muirhead 
V.  Turnhull,  1905,  7  F.  686) ;  and  such  a  contract  may  be  either  absolute 
or  conditional  (s.  1  (1)  and  (2)).  Where  a  contract  was  made  for  the  sale 
of  a  steamer,  subject  to  inspection  and  approval,  it  was  held  that  it  was 
not  necessary  to  justify  a  disapproval  on  the  inspection,  that  there  should 
be  reasonable  grounds  for  the  disapproval,  but  that  it  was  sufficient  if 
there  was  a  bond-fide  exercise  of  judgment  on  the  part  of  the  buyer 
{Raegerstrand  v.  Anne  Thomas  S.  S.  Co.,  1905,  10  Com.  Gas.  67).  Where 
the  property  in  the  goods  is  transferred  to  the  buyer  at  the  time  of  the 
making  of  the  contract,  the  contract  is  called  a  sale;  and  where  the 
transfer  of  the  property  in  the  goods  is  to  take  place  at  a  future  time 
or  subject  to  some  condition  thereafter  to  be  fulfilled,  it  is  called  an 
agreement  to  sell,  and  becomes  a  sale  when  the  time  elapses  or  the  con- 
ditions are  fulfilled  subject  to  which  the  property  in  the  goods  is  to  be 
transferred  (s.  1  (3)  and  (4)).     The  term  "  goods  "  includes  emblements, 


8.8  SALE  OF  GOODS 

industrial  growing  crops,  and  things  attached  to  or  forming  part  of  the 
land  which  are  agreed  to  be  severed  before  sale  or  under  the  contract 
of  sale,  and  all  chattels  personal  other  than  things  in  action  and  money 
(s.  62  (1)).  The  provisions  of  the  Act  relating  to  contracts  of  sale  do 
not  apply  to  any  transaction  in  the  form  of  a  contract  of  sale  which  is 
intended  to  operate  by  way  of  mortgage,  pledge,  charge,  or  other  security 
(s.  61  (4);  see  Be7inet  v.  MatUeson,  1903,  5  F.  591). 

Capacity  of  Parties. — Capacity  to  buy  and  sell  is  regulated  by  the 
general  law  concerning  capacity  to  contract,  and  to  transfer  and  acquire 
property :  provided  that  where  necessaries  are  sold  and  delivered  to 
an  infant,  or  minor,  or  to  a  person  who  by  reason  of  mental  incapacity 
or  drunkenness  is  incompetent  to  contract,  he  must  pay  a  reasonable 
price  therefor.  The  term  "  necessaries "  means  goods  suitable  to  the 
condition  in  life  of  such  infant,  minor,  or  other  person,  and  to  his  actual 
requirements  at  the  time  of  the  sale  and  delivery  (s.  2 ;  see  Infants  ; 
Lunacy;  Contract). 

Formalities  required. — A  contract  for  the  sale  of  goods  of  the  value  of 
£10  or  upwards  is  not  enforceable  by  action  (see  Taylor  v.  G.  E.  Ely.  Co., 
[1901]  1  K.  B.  774;  Rainbow  y.  Howkins,  [1904]  2  K.  B.  322)  unless 
the  buyer  accepts  part  of  the  goods  sold,  and  actually  receives  the  same, 
or  gives  something  in  earnest  to  bind  the  contract,  or  in  part  payment, 
or  unless  some  note  or  memorandum  in  writing  of  the  contract  is  made 
and  signed  by  the  party  to  be  charged  or  his  agent  in  that  behalf ;  and 
these  provisions  apply  notwithstanding  that  the  goods  are  intended  to 
be  delivered  at  a  future  time,  or  are  not  at  the  time  of  the  contract 
actually  made,  procured,  or  provided,  or  fit  or  ready  for  delivery  (s.  4 
(1)  and  (2)).  This  section  re-enacts,  with  verbal  alterations,  the  17th 
section  of  the  Statute  of  Frauds,  as  amended  by  the  7th  section  of  Lord 
Tenterden's  Act,  which  is  repealed  by  the  Sale  of  Goods  Act  (s.  60). 
The  provisions  of  the  section  apply  to  an  arbitration  {Cox  v.  Hoare, 
[1907]  96  L.  T.  719,  affirming  95  L.  T.  121). 

A  note  or  memorandum  of  the  contract,  in  order  to  satisfy  the 
provisions  of  the  section,  must  contain  the  names  of  the  contracting 
parties,  or  descriptions  from  which  they  can  be  identified  {Rossiter  v. 
Miller,  1878,  3  App.  Cas.  1124;  Cathing  v.  King,  1877,  5  Ch.  D.  660; 
Williams  v.  Jordan,  1877,  6  Ch.  Div.  517  ;  Vandenherg  v.  Spooner,  1866, 
L.  E_.  1  Ex.  316;  Don7iison  v.  Feojjle's  Caf6  Co.,  1881,  45  L.  T.  187),  the 
particulars  of  the  goods  sold,  and  the  terms  and  conditions  of  the  con- 
tract, including  the  price,  if  the  price  has  been  agreed  upon  {Goodman 
V.  Griffiths,  1857,  1  H.  &  N.  574 ;  Elmore  v.  Kingscote,  1826,  5  Barn. 
&  Cress.  583  ;  29  E.  R  341 ;  see  also  Cox  v.  Hoare,  1907,  96  L.  T.  719). 
It  is  not  necessary  that  the  memorandum  should  be  made  at  the  time 
of  the  contract ;  but  it  must  be  made  before  the  commencement  of  the 
action  in  which  it  is  sought  to  enforce  the  contract  {Buxton  v.  Rust,  1872, 
L.  K.  7  Ex.  279 ;  Saunderson  v.  Jackson,  1800,  2  Bos.  &  Pul.  238  ;  5  E.  E. 
580  ;  Bill  V.  Bament,  1841,  9  Mee.  &  W.  36 ;  60  E.  E.  658 ;  Lucas  v.  Dixon, 
1889,  22  Q.  B,  D.  357).  It  need  not  be  signed  by  both  of  the  parties. 
It  is  sufficient  if  the  defendant  or  his  duly  authorised  agent  has  signed 
it  {Egerton  v.  Mathews,  1805,  6  East,  307  ;  8  E.  E.  489 ;  Allen  v.  Bennet, 
1810,  3  Taun.  169;  12  E.  E.  633 ;  Thornton  v.  Kempstcr,  1814,  5  Taun. 
786  ;  15  E.  E.  658).  As  to  what  is  a  sufficient  signature  for  the  purpose 
of  the  section,  see  Cato^n  v.  Caton,  1867,  L.  E.  2  H.  L.  127;  Schneider 
v.  Norris,  1814,  2  M.  &  S.  286 ;  15  E.  E.  250 ;  Knight  v.  Crockford,  1794, 
1  Esp.  190 ;  5  E.  E.  729 ;  Godwin  v.  Francis,  1870,  L.  E.  5  C.  P.  295 ; 


SALE  OF  GOODS  89 

Selhy  V.  Selhy,  1817,  3  Mer.  2  ;  36  E.  E.  1 ;  17  R.  R.  1 ;  and  as  to  signature 
by  an  agent,  see  Principal  and  Agent;  Broker;  Bought  and  Sold 
Notes. 

It  is  not  necessary  that  all  the  terms  of  the  contract  should  appear 
in  one  document ;  nor  that  all  the  documents  should  be  signed.  The 
memorandum  may  consist  of  several  distinct  writings,  provided  that  they 
contain  references  to  each  other,  showing  that  they  relate  to  the  same 
transaction  ;  and  it  is  sufficient  if  one  of  such  writings  is  signed  by  the 
party  to  be  charged  {Allen  y.  Bennet,  1810,  3  Taun.  169;  11  R.  R.  633; 
Peirce  v.  Corf,  1874,  L.  R.  9  Q.  B.  210,  218  ;  Saunderson  v.  Jackson,  1800, 
2  Bos.  &  Pul.  238 ;  5  R.  R.  580).  Parol  evidence  is  admissible  for  the 
purpose  of  identifying  any  references  in  the  written  documents  {Peirce 
V.  Corf,  supra);  but  not  for  the  purpose  of  connecting  two  or  more 
documents  which  do  not  refer  to  one  another  {Boydell  v.  Drummondy 
1809,  11  East,  142;  10  R.  R.  450;  Taylor  v.  Smith,  [1893]  2  Q.  B.  65). 
In  Pearce  v.  Gardner,  [1897]  1  Q.  B.  688,  it  was  held  that  a  letter  is  so 
connected  with  the  envelope  in  which  it  is  enclosed,  that  they  form  one 
document  for  the  purpose  of  the  section. 

There  is  an  acceptance  of  goods  within  the  meaning  of  the  section 
when  the  buyer  does  any  act  in  relation  to  the  goods  which  recognises 
a  pre-existing  contract  of  sale,  whether  there  be  an  acceptance  in  the 
performance  of  the  contract  or  not  (s.  4  (3)).  In  Ahhott  v.  Wolscy,  [1895] 
2  Q.  B.  97,  where  the  goods  were  delivered  to  the  buyer,  and  he  took 
samples  from  them,  and  after  examining  such  samples,  said  that  the  goods 
were  not  in  accordance  with  the  contract,  and  that  he  would  not  have 
them,  it  was  held  that  the  taking  and  examining  the  samples  were  "  acts 
in  relation  to  the  goods  which  recognised  a  pre-existing  contract  of  sale," 
and  that  he  could  not  set  up  the  defence  that  there  was  no  memorandum 
in  writing  (see  also  Bushel  v.  Wheeler,  1844,  15  Ad.  &  E.  N.  S.  442w. ; 
81  R.  R.  675  ;  Saunders  v.  Topp,  1849,  4  Ex.  Rep.  390;  80  R.  R.  624; 
Morton  v.  Tihhett,  1850,  15  Ad.  &  E.  N.  S.  428  ;  81  R.  R.  666 ;  Kihhle  v. 
Gmtgh,  1878,  38  L.  T.  204;  Page  v.  Morgan,  1885,  15  Q.  B,D.  228).  So, 
where  a  buyer,  after  the  goods  had  been  delivered  to  him,  tried  to  resell 
them,  using  for  the  purpose  a  sample  obtained  from  the  seller,  and  kept 
the  goods  for  a  month,  it  was  held  that  there  was  an  acceptance  within 
the  meaning  of  the  section,  though  the  buyer  did  not  actually  inspect 
the  goods  or  take  a  sample  from  them  {Taylor  v.  G.  E.  Ely.  Co.,  [1901] 
1  K.  B.  774).  On  the  other  hand,  where  a  purchaser  of  a  quantity  of 
deals  went  to  the  railway  station  to  which  they  were  consigned,  and 
after  merely  looking  at  them,  rejected  them  as  not  being  according  to 
representation,  it  was  held  that  there  had  not  been  such  a  dealing  with 
the  goods  as  constituted  an  acceptance  within  the  meaning  of  the  section 
{Taylor  v.  Smith,  [1893]  2  Q.  B.  65 ;  and  see  Norman  v.  Phillips,  1845, 
14  Mee.  &  W.  277 ;  Hunt  v.  Hecht,  1853,  8  Ex.  Rep.  814). 

To  constitute  a  giving  something  in  earnest,  or  in  part  payment, 
within  the  meaning  of  the  section,  the  thing  or  money  must  be  actually 
transferred.  What  is  known  as  "  striking  off"  the  bargain,  i.e.  the  buyer 
drawing  a  coin  over  the  hand  of  the  seller,  and  then  returning  it  to  his 
own  pocket,  is  not  sufficient  {Blenkinsop  v.  Clayton,  1817,  7  Taun.  597; 
18  R.  R.  602).  Nor  is  the  statute  satisfied  by  the  appropriation  at  the 
time  of  the  contract  of  a  sum  of  money  already  in  the  seller's  hands 
belonging  to  the  buyer,  or  of  a  debt  due  from  the  seller  to  the  buyer,  in 
part  payment  {Norton  v.  Davison,  [1899]  1  Q.  B.  401 ;  Walker  v.  Nussey, 
1847,  16  Mee,  &  W.  302 ;  73  R.  R.  507). 


90  SALE  OF  GOODS 

Subject-Matter  of  the  Contract — The  goods  which  form  the  subject- 
matter  of  a  contract  of  sale  may  be  either  existing  goods,  owned  or 
possessed  by  the  seller,  or  future  goods,  to  be  manufactured  or  acquired 
by  the  seller  after  the  making  of  the  contract;  and  there  may  be  a 
contract  for  the  sale  of  goods,  the  acquisition  of  which  by  the  seller 
depends  upon  a  contingency  which  may  or  may  not  happen  (s.  5  (1) 
and  (2)).  Where  the  seller  purports  to  effect  a  present  sale  of  future 
goods,  the  contract  operates  as  an  agreement  to  sell  the  goods  (s.  5  (3)). 

Where  there  is  a  contract  for  the  sale  of  specific  goods,  and  the  goods 
without  the  knowledge  of  the  seller  have  perished  at  the  time  when  the 
contract  is  made,  the  contract  is  void  (s.  6 ;  see  Coutourier  v.  Hastie, 
1850,  5  H.  L.  C.  673;  10  E.  K.  1065);  and  where  there  is  an  agreement 
to  sell  specific  goods,  which  subsequently,  without  any  fault  on  the  part 
of  the  seller  or  buyer,  perish  before  the  risk  has  passed  to  the  buyer, 
the  agreement  is  thereby  avoided  (s,  7).  The  expression  "specific 
goods  "  means  goods  which  are  identified  and  agreed  upon  at  the  time 
when  the  contract  of  sale  is  made  (s.  62  (1)).  In  Nicholl  v.  Ashton, 
[1901]  2  K.  B.  126,  it  was  held  that  a  contract  for  the  sale  of  a  cargo 
to  be  shipped  by  a  specified  steamer  at  a  specified  time,  and  containing 
a  clause  providing  for  its  cancellation  in  case  of  prohibition  of  export, 
blockade,  or  hostilities  preventing  shipment,  was  subject  to  an  implied 
condition  that  the  steamer  should  at  the  specified  time  for  shipment 
be  in  existence  as  a  cargo-carrying  vessel,  the  non-fulfilment  of  which 
avoided  the  contract. 

The  Price. — The  price  in  a  contract  of  sale  may  be  fixed  by  the  con- 
tract, or  may  be  left  to  be  fixed  in  the  manner  thereby  agreed,  or  may 
be  determined  by  the  course  of  dealing  between  the  parties ;  and  if  not 
so  fixed  or  determined,  the  buyer  must  pay  a  reasonable  price  (s.  8). 
Where  it  is  agreed  that  the  price  shall  be  fixed  by  the  valuation  of  a 
third  party,  and  such  third  party  cannot  or  does  not  make  such  a  valua- 
tion, the  agreement  is  avoided ;  but  if  in  such  a  case  the  goods  or  any 
part  thereof  have  been  delivered  to  or  appropriated  by  the  buyer,  he 
must  pay  a  reasonable  price  therefor ;  and  if  the  third  party  is  prevented 
from  making  the  valuation  by  the  fault  of  the  seller  or  buyer,  the  party 
not  in  fault  may  maintain  an  action  for  damages  against  the  party  in 
fault  (s.  9 ;  and  see  Valuation). 

Stipulations  as  to  Time. — Unless  a  different  intention  appears  from 
the  terms  of  the  contract,  stipulations  as  to  time  of  payment  are  not 
deemed  to  be  of  the  essence  of  a  contract  of  sale.  Whether  any  other 
stipulation  as  to  time  is  of  the  essence  of  the  contract  or  not  depends 
on  the  terms  of  the  contract  (s.  10  (1);  Kidston  v.  Monccau  Ironworks, 
1902,  86  L.  T.  556 ;  see  Time  as  an  Element  in  Contract).  In  a  contract 
of  sale,  the  term  "  month  "  ^Hm^t /acze  means  calendar  month  (s.  10  (2)). 
In  re  Lockie  &  Craggs,  1902,  86  L.  T.  388,  a  contract  for  the  building 
of  a  ship  provided  that  it  should  be  delivered  by  a  certain  date,  allow- 
ance to  be  made  for  delays  through  certain  specified  causes  or  other 
circumstances  beyond  the  builder's  control.  It  was  contemplated  by 
the  parties  that  the  ship  was  to  be  built  at  the  builder's  yard  as  soon 
as  a  suitable  berth  became  vacant,  and  owing  to  delays  in  the  building 
of  another  vessel,  due  to  causes  of  the  same  nature  as  those  specified  in 
the  contract,  a  suitable  berth  did  not  become  vacant  in  time  to  enable 
the  ship  to  be  built  by  the  date  fixed.  It  was  held  that  allowance  must 
be  made  for  the  delays  during  the  building  of  the  other  vessel.  In 
Forrestt  v.  Arainayo,  1900,  83  L.  T.  335,  the  plaintiffs  had  contracted  to 


SALE  OF  GOODS  91 

build  and  deliver  f.o.b.  London  a  steam  launch  by  a  certain  date.  The 
launch  was  not  ready  for  delivery  until  three  months  after  the  date 
fixed,  but  the  buyer  had  not  during  that  time  notified  them  of  any 
vessel  on  board  of  which  he  required  it  to  be  delivered.  It  was  held 
that  the  defendant  (the  buyer)  was  not  entitled  to  damages  for  the  delay, 
because  it  did  not  appear  that  he  was  ready  and  willing  to  take  delivery 
before  the  launch  was  ready  for  delivery. 

As  to  the  meaning  of  "  clearance  "  in  a  contract  providing  that  clear- 
ance shall  not  be  later  than  a  certain  date,  see  Thalmann  v.  Texas  Star 
Flour  Mills,  1900,  82  L.  T.  833. 

Conditions  and  Warranties. — A  condition  in  a  contract  of  sale  is  a 
stipulation,  the  breach  of  which  gives  rise  to  a  right  to  treat  the  con- 
tract as  repudiated.  A  warranty  is  an  agreement  with  reference  to  the 
goods  which  is  collateral  to  the  main  purpose  of  the  contract,  the  breach 
of  which  gives  rise  to  a  claim  for  damages,  but  not  to  a  right  to  reject 
the  goods  and  treat  the  contract  as  repudiated.  Whether  a  stipulation 
in  a  contract  of  sale  is  a  condition  or  a  warranty  depends  in  each  case 
on  the  construction  of  the  contract.  A  stipulation  may  be  a  condition, 
though  called  a  warranty  in  the  contract  (s.  11  (1)  (b);  s,  62  (1);  see 
Bannerman  v.  White,  1861,  10  C.  B.  K  S.  844,  860;  Street  v.  Blay,  1831, 
2  Barn.  &  Adol.  456 ;  36  E.  R.  626 ;  Mondell  v.  Steel,  1842,  8  Mee.  &  W. 
858 ;  58  E.  E.  890 ;  Head  v.  Tattersall,  1871,  L.  E.  7  Ex.  7 ;  Kidston  v. 
Monceau  Ironworks,  1902,  86  L.  T.  556). 

Wlienever  a  contract  for  sale  is  subject  to  any  condition  to  be  ful- 
filled by  the  seller,  the  buyer  may  waive  the  condition,  or  may  elect  to 
treat  a  breach  thereof  as  a  breach  of  warranty,  and  not  as  a  ground  for 
treating  the  contract  as  repudiated;  and  where  the  contract  is  not 
severable,  and  the  buyer  has  accepted  the  goods,  or  part  thereof,  or  where 
the  contract  is  for  specific  goods,  the  property  in  which  has  passed  to 
the  buyer,  he  can  only  treat  a  breach  of  any  such  condition  as  a  breach 
of  warranty,  and  not  as  a  ground  for  rejecting  the  goods  and  treating 
the  contract  as  repudiated,  unless  there  be  a  term  of  the  contract,  express 
or  implied,  to  that  effect  (s.  11  (1)  (a)  and  (c);  see  Street  v.  Blay,  1831, 
2  Barn.  &  Adol.  456 ;  36  E.  E.  626 ;  ffayworth  v.  Hutchinson,  1867, 
L.  E.  2  Q.  B.  447 ;  Parson  v.  Sexton,  1847, 4  C.  B.  899 ;  Adam  v.  Richards, 
1795,  2  Black.  (H.)  573;  3  E.  E.  508;  Head  v.  Tattersall,  1871,  L.  E. 
7  Ex.  7 ;  Aird  v.  Pullan,  1905,  7  F.  258). 

Conditions  cannot  be  imposed  on  a  sale  of  goods  so  as  to  run  with 
the  goods  and  be  enforceable  by  the  seller  against  subsequent  purchasers 
from  the  buyer,  even  though  such  subsequent  purchasers  have  notice  of 
the  conditions  at  the  time  when  they  buy  the  goods  {M'Grruther  v.  Pitcher, 
[1904]  2  Ch.  306 ;  Taddy  v.  Sterious,  [1904]  1  Ch.  354).  A  condition 
that  goods  shall  not  be  sold  at  less  than  certain  fixed  minimum  prices 
cannot  therefore  be  made  binding  and  effectual  except  as  between  the 
immediate  parties  to  the  original  contract  of  sale,  or  as  between  parties 
to  subsequent  contracts  made  subject  to  the  same  condition  (ibid.). 

(a)  Implied  Undertaking  as  to  Title. — In  a  contract  of  sale,  unless  the 
circumstances  of  the  contract  are  such  as  to  show  a  different  intention, 
there  is,  on  the  part  of  the  seller,  an  implied  condition  that  in  the  case 
of  a  sale  he  has  a  right  to  sell  the  goods,  and  that  in  the  case  of  an 
agreement  to  sell  he  will  have  such  a  right  at  the  time  when  the  property 
is  to  pass ;  and  an  implied  warranty  that  the  buyer  shall  have  and  enjoy 
quiet  possession  of  the  goods,  and  that  the  goods  shall  be  free  from  any 
charge  or  encumbrance  in  favour  of  any  third  party,  not  declared  or 


92  SALE  OF  GOODS 

known  to  the  buyer  before  or  at  the  time  when  the  contract  is  made 
(s.  12).  This  section  slightly  alters  the  previous  law  on  the  subject  (see 
Morhy  v.  Attenhorough,  1849,  3  Ex.  Eep.  500;  77  R.  R.  709;  Baqueley 
V.  Hawley,  1867,  L.  R.  2  C.  P.  625 ;  Eichholz  v.  Bannister,  1864,  17  C.  B. 
X,  S.  708).  "Where  an  auctioneer  professed  to  sell  goods  under  a  distress 
warrant,  and  it  turned  out  that  the  warrant  was  bad,  it  was  held  that 
there  was  no  implied  warranty  of  title  on  his  part  {Payne  v.  Elsden,  1900, 
17  T.  L.  R.  161). 

(h)  Implied  Conditions  and  Warranties  as  to  Quality  or  Fitness. — 
"Where  goods  are  sold  by  description,  there  is  an  implied  condition  that 
they  shall  correspond  with  the  description ;  and  if  they  are  sold  by 
sample,  as  well  as  by  description,  it  is  not  sufficient  that  the  bulk 
corresponds  with  the  sample  if  the  goods  do  not  also  correspond  with 
the  description  (s.  13;  see  Varley  v.  Whipp,  [1900]  1  Q.  B.  513;  Smith 
V.  Hughes,  1871,  L.  R.  6  Q.  B.  597 ;  Gill  v.  McDowell,  [1903]  2  Ir.  R.  463 ; 
Vigers  v.  Sanderson,  [1901]  1  K.  B.  608 ;  Leary  v.  Briggs,  1904,  6  F.  857). 
Even  if  it  is  expressly  provided  that  the  seller  gives  no  warranty  as  to 
the  quality  of  the  goods  sold,  he  is  nevertheless  bound  to  deliver  goods 
answering  the  description  {Hoivcroft  v.  Laycoek,  1898,  14  T.  L.  R.  460 ; 
Josling  V.  Kingsford,  1863,  13  C.  B.  N.  S.  447;  Nichol  v.  Qodts,  1854, 
10  Ex.  Rep.  191). 

In  the  case  of  a  sale  by  sample  there  are  implied  conditions,  that  the 
bulk  shall  correspond  with  the  sample  in  quality ;  that  the  buyer  shall 
have  a  reasonable  opportunity  of  comparing  the  bulk  with  the  sample ; 
and  that  the  goods  shall  be  free  from  any  defect,  rendering  them  unmer- 
chantable, which  would  not  be  apparent  on  reasonable  examination  of 
the  sample  (s.  15  (2) ;  Mody  v.  Gregson,  1869,  L.  R.  4  Ex.  49 ;  Drummond 
v.  Van  Ingen,  1887,  12  App.  Gas.  284). 

In  Lorymer  v.  Smith,  1822,  1  Barn.  &  Cress.  1,  a  seller  of  wheat  in 
bulk  improperly  refused  to  permit  the  buyer  to  inspect  the  bulk  in  order 
to  compare  it  with  the  sample,  and  it  was  held  that  the  buyer  was 
justified  in  repudiating  the  contract,  though  the  seller  subsequently 
(three  days  afterwards)  offered  to  allow  the  inspection.  "Where  a  con- 
tract for  sale  by  sample  provided  that  payment  should  be  made  "  in  cash 
in  London  on  the  arrival  "of  the  goods  "against  shipping  or  railway 
documents,"  it  was  held  that  the  buyer  was  not  entitled  to  an  opportunity 
before  payment  of  comparing  the  bulk  with  the  sample,  but  that  his 
right  to  reject  the  goods  if  they  did  not  correspond  with  the  sample 
would  not  he  impaired  by  his  having  paid  the  price  {Polenghi  v.  Dried 
Milk  Co.,  1905,  92  L.  T.  64). 

A  contract  of  sale  is  a  contract  of  sale  by  sample  where  there  is  a 
term  in  the  contract,  express  or  implied,  to  that  etfect  (s.  15  (1)),  It 
does  not  follow,  merely  because  a  sample  is  shown  during  the  negotia- 
tions for  a  sale,  that  it  is  a  sale  by  sample.  It  must  appear  that  the 
sale  was  intended  by  the  parties  to  be  conditional  upon  the  bulk  being 
equal  to  the  sample  in  quality.  If  there  is  a  written  contract  for  sale, 
which  describes  the  goods  as  being  of  a  particular  denomination  or 
quality,  without  reference  to  any  sample,  it  is  a  sale  by  description,  and 
not  by  sample,  even  if  a  sample  was  shown,  and  the  bulk  was  represented 
as  corresponding  with  such  sample,  because  a  written  agreement  cannot 
be  varied  or  added  to  by  parol  testimony,  and  the  parties  must  be  taken 
to  have  abandoned  the  sample  as  the  criterion  of  the  quality  of  the  goods 
{Meyer  v.  Everth,  1814,  4  Camp.  (N.  P.)  22;  15  R.  R.  722;  Gardiner  v. 
Gray,  1815,  4  Camp.  (N.  P.)  145;  16  R.  R.  764;  Tye  v.  Fynmore,  1813, 
3  Camp.  (N.  P.)  462 ;  14  R.  R.  809). 


SALE  OF  GOODS  93 

A  usage  of  trade,  whereby,  on  a  contract  for  sale  by  sample  which 
contains  an  arbitration  clause,  the  buyer  is  not  to  be  entitled  to  reject 
the  goods  by  reason  of  a  variation  between  the  sample  and  the  bulk, 
provided  the  variation  is  such  that  it  can  reasonably  be  remedied  by  an 
abatement  of  the  price,  and  does  not  affect  the  purpose  for  which  the 
goods  are  bought,  has  been  held  to  be  a  valid  usage  (  Walkers  v.  Shaw, 
[1904]  2  K.  B.  152). 

Where  a  buyer  of  goods,  expressly  or  by  implication,  makes  known 
to  the  seller  the  particular  purpose  for  which  the  goods  are  required,  so 
as  to  show  that  the  buyer  relies  on  the  seller's  skill  or  judgment,  and 
the  goods  are  of  a  description  which  it  is  in  the  course  of  the  seller's 
business  to  supply  (whether  he  be  the  manufacturer  or  not),  there  is  an 
implied  condition  that  the  goods  shall  be  reasonably  fit  for  such  pur- 
pose ;  provided  that  in  the  case  of  a  contract  for  the  sale  of  a  specified 
article  under  its  patent  or  other  trade  name,  there  is  no  implied  condi- 
tion as  to  its  fitness  for  any  particular  purpose  (s.  14  (1) ;  and  see  Jones 
v.  Bright,  1829,  5  Bing.  533 ;  30  R.  R.  728 ;  Bigge  v.  Parkinson,  1862, 
7  H.  &  N.  955 ;  Randall  v.  Newson,  1877,  2  Q.  B.  D.  102 ;  Clarke  v.  Army 
and  Navy  Co-operative  Society,  [1903]  1  K.  B.  155 ;  Paul  v.  Glasgoiv  Cor- 
poration, 1901,  3  F.  119;  Strongitharm  v.  North  Lonsdale  Iron,  etc.,  Co., 
1905,  21  T.  L.  R.  357;  Williainson  v.  Macphcrson,  1904,  6  F.  863). 
Where  goods  were  bought  under  a  written  contract,  which  contained 
no  reference  to  the  particular  purpose  for  which  they  were  required,  it 
was  held  that  parol  evidence  was  admissible  to  prove  that,  prior  to  the 
making  of  the  contract,  the  buyer  had  made  known  to  the  sellers  the 
purpose  for  which  he  required  the  goods,  and  relied  on  their  skill  and 
judgment,  so  as  to  imply  a  condition  of  fitness  for  such  purpose  {Gillespie 
v.  Cheney,  [1896]  2  Q.  B.  59).  It  was  also  held,  in  the  same  case,  that 
a  sale  of  coals  under  a  particular  denomination  known  in  the  coal  trade, 
was  not  a  sale  "  of  a  specified  article  under  its  patent  or  other  trade 
name  "  within  the  meaning  of  the  sub-section. 

If  an  article  ordinarily  applicable  to  one  purpose  only  is  sold  by  its 
ordinary  recognised  description,  it  is  not  necessary  to  raise  the  implica- 
tion of  a  condition  under  this  sub-section  that  the  buyer  should  make 
known  the  purpose  for  which  the  article  is  required  otherwise  than  by 
asking  for  it  by  its  ordinary  description  (Prcist  v.  Last,  [1903]  2  K.  B. 
148).  Where,  therefore,  a  person  who  had  no  special  knowledge  of  hot- 
water  bottles  went  to  a  chemist,  whose  ordinary  course  of  business  was 
to  sell  them,  and  simply  asked  for  a  hot-water  bottle,  it  was  held  that, 
the  circumstances  showing  that  the  buyer  relied  on  the  seller's  skill  or 
judgment,  there  was  an  implied  condition  that  the  seller  should  supply 
a  bottle  reasonably  fit  for  the  purpose  for  which  hot-water  bottles  are 
ordinarily  used  {ibid. ;  and  see  Wallis  v.  Russell,  [1902]  2  Ir.  R.  585). 

In  Frost  v.  Aylesbury  Dairy  Co.,  [1905]  1  K.  B.  608,  the  defendant 
company  had  supplied  milk  to  the  plaintiff  for  consumption  by  his  family 
by  delivering  it  at  his  house  in  the  ordinary  way.  The  book  supplied 
to  him  by  the  company  for  keeping  the  milk  account  contained  numerous 
advertisements  of  the  precautions  taken  by  the  company  to  insure  by 
inspection  and  analysis  that  only  pure  milk,  free  from  disease  germs,  was 
supplied.  The  plaintiffs  wife  contracted  typhoid  fever  from  milk  supplied 
by  the  company,  and  died.  It  was  held  that  the  circumstances  showed 
the  plaintiff  had  made  known  to  the  company  that  the  milk  was  required 
for  the  purpose  of  household  consumption,  and  relied  on  the  company's 
skill  and  judgment,  and  that  there  was  therefore  an  implied  condition 


94  SALE  OF  GOODS 

that  it  was  reasonably  fit  for  household  consumption ;  and  further,  that 
the  implied  condition  was  not  limited  so  as  to  apply  only  to  discoverable 
defects,  but  applied  to  the  presence  of  typhoid  germs,  although  it  was 
impossible  to  test  milk  intended  for  household  consumption  for  such 
germs. 

"Where  goods  are  bought  by  description  from  a  seller  who  deals  in  goods 
of  that  description  (whether  he  be  the  manufacturer  or  not),  there  is  an 
implied  condition  that  the  goods  shall  be  of  merchantable  quality ;  pro- 
vided that  if  the  buyer  has  examined  the  goods,  there  is  no  implied 
condition  as  regards  defects  which  such  examination  ought  to  have 
revealed  (s.  14  (2) ;  see  Mody  v.  Gregson,  1868,  L.  R  4  Ex.  49 ;  JDrummond 
V.  Van  Ingen,  1887,  12  App.  Gas.  284;  Emmerton  v.  Matthews,  1862,  7  H. 
&  K  586 ;'  Smith  v.  Baker,  1879,  40  L.  T.  261 ;  Burnhj  v.  Bollett,  1847, 
16  Mee.  &  W.  644;  Williamson  v.  Macpherson,  1904,  6  F.  863).  The 
implied  condition  of  merchantableness  is  not  excluded  by  the  fact  of  the 
sale  having  been  by  sample,  as  well  as  by  description,  if  the  defects 
were  so  latent  that  they  could  not  be  discovered  by  a  reasonable 
examination  of  the  sample  {Drummond  v.  Van  Ingen,  supra).  In  Wren 
V.  Holt,  [1903]  1  K.  B.  610,  the  plaintiff  had  purchased  beer  in  the 
ordinary  way  at  a  tied  public-house  kept  by  the  defendant,  and  had 
suffered  from  arsenical  poisoning  in  consequence  of  drinking  the  beer. 
The  plaintiff  knew  it  was  a  tied  house  and  did  not  rely  on  the  skill  or 
judgment  of  the  defendant,  but  on  the  good  name  of  the  brewery  supply- 
ing the  beer.  It  was  held  that  there  was  an  implied  condition  that  the 
beer  was  of  merchantable  quality  under  sec.  14  (2),  and  that  the  plaintiff 
was  entitled  to  damages  in  respect  of  the  illness  from  which  he  suffered 
(see  also  Wallis  v.  Bussell,  [1902]  2  Ir.  K.  585). 

Subject  to  the  provisions  of  the  Sale  of  Goods  Act,  referred  to  above, 
and  to  the  provisions  of  any  statute  in  that  behalf,  there  is  no  implied 
warranty  or  condition  as  to  the  quality  or  fitness  for  any  particular 
purpose  of  goods  supplied  under  a  contract  of  sale  (s.  14),  except  where 
such  warranty  or  condition  is  annexed  by  usage  of  trade  (s.  14  (3) ;  see 
Jones  V.  Bowden,  1813,  4  Taun.  847 ;  14  R.  R.  683).  The  Merchandise 
Marks  Act,  1887,  50  &  51  Vict.  c.  28,  s.  17,  provides  that  on  a  contract 
for  the  sale  of  goods  to  which  a  trade-mark,  or  mark,  or  trade  descrip- 
tion has  been  applied,  the  vendor  shall  be  deemed  to  warrant  that  the 
mark  is  a  genuine  trade-mark  and  not  forged  or  falsely  applied,  or  that 
the  trade  description  is  not  a  false  trade  description  within  the  meaning 
of  the  Act,  unless  the  contrary  is  expressed  in  some  writing,  signed  by 
or  on  behalf  of  the  vendor,  and  delivered  at  the  time  of  the  contract  to 
and  accepted  by  the  buyer.  And  the  Act  of  37  &  38  Vict.  c.  51,  s.  4, 
provides  that  every  contract  for  the  sale  of  a  chain  cable  shall,  in  the 
absence  of  express  stipulation  to  the  contrary,  be  deemed  to  imply  a 
warranty  that  the  cable  has  been  before  delivery  tested  and  stamped  in 
accordance  with  the  Chain  Cables  and  Anchors  Acts,  1864-1874. 

An  express  warranty  or  condition  does  not  negative  a  warranty  or 
condition  implied  by  the  Sale  of  Goods  Act  unless  inconsistent  therewith 
(s.  14  (4)).  As  to  what  constitutes  an  express  warranty,  see  Cave  v. 
Coleman,  1828,  3  Man.  &  E.  2 ;  32  E.  E.  709 ;  Ormrod  v.  Huth,  1845, 
14  Mee.  &  W.  651 ;  Dunlop  v.  Waugh,  1792,  1  Pea.  167 ;  Hopkins  v. 
Tanqueray,  1854,  15  C.  B.  130 ;  Wnght  v.  Crookes,  1840,  1  Sco.  N.  E. 
785 ;  Stucley  v.  Bailey,  1862,  1  H.  &  C.  405 ;  Hyslop  v.  Shirlaw,  1906, 
7  F.  875 ;  and  see  Warkanty.  A  mere  representation  may  amount  to  a 
warranty,  if  it  appears  to  have  been  intended  as  such  (see  the  cases  just 


SALE  OF  GOODS  95 

cited).  But  where  there  is  a  contract  in  writing,  the  buyer  is  not 
entitled  to  rely  upon  any  representation  as  an  express  warranty,  unless 
it  is  contained  in  the  written  contract,  because  an  agreement  in  writing 
cannot  be  varied  or  added  to  by  parol  testimony  (Paul  v.  Glasgow  Cor- 
poration, 1901,  3  F.  119 ;  Harnor  v.  Groves,  1855,  15  C.  B.  667).  A 
warranty  given  after  the  completion  of  the  sale  is  ineffectual,  unless 
supported  by  a  new  consideration  {Roscorla  v.  Thomas,  1842,  3  Q.  B. 
234;  61  K.  R.  216). 

Independently  of  any  express  or  implied  condition  or  warranty,  it  is 
the  duty  of  a  seller  of  goods  which  he  knows  to  be  dangerous,  to  warn 
the  buyer  of  their  dangerous  quality,  if  the  circumstances  are  such  that 
the  buyer  is  presumably  ignorant  of  it.  In  Clarke  v.  Army  and  Navy 
Co-operative  Society,  [1903]  1  K.  B.  155,  the  defendant  society  sold  to 
the  plaintiff  a  tin  of  chlorinated  lime  from  a  consignment,  of  which 
other  tins  had  to  the  knowledge  of  the  defendant's  manager  caused 
injury  to  persons  opening  them.  The  plaintiff,  on  opening  the  tin,  was 
injured  by  the  lime  flying  into  her  eyes,  and  no  warning  having  been 
given  to  her,  it  was  held  that  the  society  was  liable  for  the  injury. 

When  the  Property  passes. — In  the  case  of  a  contract  for  the  sale  of 
unascertained  goods,  no  property  in  the  goods  is  transferred  to  the  buyer 
unless  and  until  the  goods  are  ascertained  (s.  16).  Thus,  where  the  goods 
sold  form  part  of  a  larger  quantity  in  bulk,  the  property  in  such  goods 
cannot  pass  to  the  buyer  until  they  have  been  distinguished  and  separated 
from  the  rest  of  the  bulk  (see  Gillett  v.  Hill,  1834,  2  C.  &  M.  530 ;  39  R.  R. 
833 ;  Busk  v.  Davis,  1814,  2  M.  &  S.  397 ;  15  R.  R.  288 ;  Dixon  v.  Yates, 
1833,  5  Barn.  &  Adol.  313,  340;  39  R.  R.  489). 

In  the  case  of  a  contract  for  the  sale  of  specific  or  ascertained  goods, 
the  time  at  which  the  property  in  them  passes  to  the  buyer  depends  upon 
the  intention  of  the  parties,  to  be  ascertained  from  the  terms  of  the  con- 
tract, the  conduct  of  the  parties,  and  the  circumstances  of  the  case  (s.  17 ; 
see  Carmichael  &  Co.'s  Trustee  v.  Macbeth,  1902,  4  F.  345). 

The  Sale  of  Goods  Act  contains  rules  for  ascertaining  the  intention 
of  the  parties,  unless  a  different  intention  appears,  as  to  when  the  property 
in  the  goods  is  to  pass  to  the  buyer  (s.  18).  In  the  case  of  an  uncon- 
ditional contract  for  the  sale  of  specific  goods,  in  a  deliverable  state  (i.e. 
in  such  a  state  that  the  buyer  would  under  the  contract  be  bound  to 
take  delivery  of  them  (s.  62  (4)),  the  property  passes  when  the  contract 
is  made,  and  it  is  immaterial  whether  the  time  of  payment  or  the  time 
of  delivery,  or  both,  be  postponed  (r.  1 ;  see  Tarling  v.  Baxter,  1827, 
6  Barn.  &  Cress.  360 ;  30  R.  R.  355).  In  the  case  of  a  sale  of  specific 
goods,  if  the  seller  is  bound  to  do  something  to  the  goods,  for  the  purpose 
of  putting  them  into  a  deliverable  state,  or  is  bound  to  weigh,  measure, 
test,  or  do  some  other  act  or  thing  with  reference  to  the  goods  for  the 
purpose  of  ascertaining  the  price,  the  property  does  not  pass  until  such 
act  or  thing  is  done,  and  the  buyer  has  notice  thereof  (rr.  2  and  3 ;  see 
Acraman  v.  Morrice,  1849,  8  C.  B.  449 ;  79  R.  R.  568  ;  Zagury  v.  Furnell, 
1809,  2  Camp.  K  P.  240  ;  11  R.  R.  704 ;  Simmons  v.  Swift,  1826,  5  Barn. 
&  Cress.  857 ;  29  R.  R.  438 ;  Tamley  v.  Turner,  1835,  2  Sco.  238 ; 
42  R.  R.  564). 

Where  the  goods  are  delivered  to  the  buyer  on  approval,  or  "  on  sale 
or  return,"  or  other  similar  terms,  the  property  therein  passes  to  the 
buyer  when  he  signifies  his  approval  or  acceptance  to  the  seller,  or  does 
any  other  act  adopting  the  transaction ;  or,  if  he  does  not  signify  his 
approval  or  acceptance,  but  retains  the  goods  without  giving  notice  of 


96  SALE  OF  GOODS 

rejection,  then,  if  a  time  has  been  fixed  for  the  return  of  the  goods,  on 
the  expiration  of  such  time,  and  if  no  time  has  been  fixed,  on  the  expira- 
tion of  a  reasonable  time  (r.  4).     In  Kirkliam  v.  Attenhorough,  [1897] 

I  Q.  B.  201,  where  a  person  who  had  received  goods  on  sale  or  return 
pledged  them,  it  was  held  that  pledging  them  was  an  act  adopting  the 
transaction,  and  that  therefore  the  property  passed,  and  the  seller  had 
no  right  to  recover  the  goods  from  the  pledgee.  It  is  sufficient  if  any 
act  is  done  which  is  inconsistent  with  the  return  of  the  goods  (ibid.). 
In  Weiner  v.  Gill ;  Weiner  v.  Smith,  [1906]  2  K.  B.  574,  goods  were 
delivered  by  the  plaintiff,  a  manufacturer,  to  a  retail  dealer,  on  the 
following  terms  : — "  On  approbation.  On  sale  for  cash  only  or  return. 
Goods  had  on  approbation  or  on  sale  or  return  remain  the  property  of  the 
manufacturer  until  such  goods  are  settled  for  or  charged."  The  retail 
dealer  delivered  the  goods  to  another  dealer  on  the  terms  that  he  should 
pay  cash  or  return  them  in  a  day  or  two.  The  latter  fraudulently 
pledged  the  goods  with  the  defendants,  who  were  pawnbrokers.  It  was 
held — (1)  That  the  plaintiff  had  not  delivered  the  goods  "on  sale  or  return 
or  other  similar  terms "  within  the  meaning  of  the  section ;  (2)  that  it 
was  not  intended  that  the  property  should  pass  until  the  goods  had  been 
paid  for  or  the  plaintiff  had  debited  the  first-mentioned  dealer  with  the 
price,  and  consequently  that  the  property  had  not  passed  from  the 
plaintiff,  who  was  entitled  to  recover  the  goods  from  the  defendants 
(cp.  Bryce  v.  Ehrmann,  1904,-  7  F.  5). 

Where  the  contract  is  for  the  sale  of  unascertained  or  future  goods  by 
description,  and  goods  of  that  description  and  in  a  deliverable  state  (see 
Vigers  v.  Sanderson,  [1901]  1  K.  B.  608)  are  unconditionally  appropriated 
to  the  contract  with  the  assent,  express  or  implied,  of  both  parties,  the 
property  in  the  goods  thereupon  passes  to  the  buyer.  Such  assent  may 
be  given  either  before  or  after  the  appropriation  is  made ;  and  where,  in 
pursuance  of  the  contract,  the  seller  delivers  the  goods  to  the  buyer  or 
to  a  carrier  or  other  bailee  for  the  purpose  of  transmission  to  the  buyer, 
and  does  not  reserve  the  right  of  disposal,  he  is  deemed  to  have  uncon- 
ditionally appropriated  the  goods  to  the  contract  (r.  5 ;  see  Jenner  v. 
Smith,  1869,  L.  R  4  C.  P.  270  ;  Inglis  v.  Stock,  1885,  10  App.  Gas.  263 ; 
£x  parte  Pearson,  1868,  L.  R  3  Ch.  443 ;  Bohde  v.  Thwaites,  1827,  6  Barn. 
&  Cress.  388 ;  30  R  R  363). 

As  a  general  rule,  in  the  case  of  a  contract  for  the  sale  of  a  chattel,  to 
be  manufactured  by  the  seller,  the  property  in  the  chattel  does  not  pass 
to  the  buyer  until  it  has  been  completed  and  appropriated  to  the  contract 
with  his  assent  {Atkinson  v.  Bell,  1828,  8  Barn.  &  Cress.  277  ;  32  E.  E. 
382  ;  Wilkins  v.  Bromhead,  1844,  6  Man.  &  G.  963 ;  Carruthers  v.  Payne, 
1828,  5  Bing.  270 ;  30  R  E.  592).  It  is,  however,  competent  to  the 
parties  to  agree  that  at  a  particular  stage  in  the  construction  of  the 
chattel  it  shall  be  appropriated  to  the  contract  of  sale,  and  the  property 
therein,  so  far  as  it  is  then  completed,  shall  pass  to  the  buyer,  and  sub- 
sequent additions  to  the  chattel  become,  as  they  are  added,  his  property; 
and  such  an  agreement  is  to  be  inferred,  in  the  absence  of  circumstances 
pointing  to  a  different  conclusion,  from  a  provision  in  the  contract  that 
an  instalment  of  the  price  shall  be  paid  at  a  particular  stage,  and  other 
instalments  according  to  the  progress  of  the  work  (Seath  v.  Moore,  1886, 

II  A.  C.  350 ;  Woods  v.  Eussell,  1822,  5  Barn.  &  Aid.  942 ;  24  E.  E.  621 ; 
Clarke  v.  Spence,  1836,  4  Ad.  &  E.  448 ;  43  R  R  395).  Where,  however, 
a  contract  for  the  construction  of  a  ship  provided  that  "  the  vessel  as  she 
is  constructed,  and  all  her  engines,  boilers   and   machinery,   and   all 


SALE  OF  GOODS  97 

materials  from  time  to  time  intended  for  her  or  them,  whether  in  the 
shipbuilding  yard,  workshop,  river,  or  elsewhere,  shall  immediately  as  the 
same  proceeds  become  the  property  of  the  purchasers,  and  shall  not  be 
within  the  ownership,  control  or  disposition  of  the  builders,  .  .  ."  and 
the  builders  became  bankrupt  before  the  vessel  was  completed,  it  was 
held  that  as  the  contract  was  for  a  complete  ship,  materials  which  had 
not  been  incorporated  into  the  vessel  did  not  vest  in  the  purchasers,  but 
passed  to  the  trustee  in  bankruptcy,  although  such  materials  were  marked 
with  the  vessel's  number  and  the  place  in  the  vessel  they  were  intended 
to  occupy  {Reicl  v.  Macbeth,  [1904]  A.  C.  223 ;  see  also  Seath  v.  Moore, 
supra).  And  where  a  shipbuilding  contract  provided  that  the  ship  should 
not  be  delivered,  or  be  deemed  to  be  finally  accepted,  until  she  had  under- 
gone an  official  trial,  and  fulfilled  certain  specified  conditions,  as  to  speed, 
consumption  of  fuel,  and  so  forth,  it  was  held  that  the  property  did  not 
pass  while  the  ship  was  uncompleted,  notwithstanding  stipulations  for 
the  payment  of  instalments  of  the  price  during  the  course  of  construction 
{LaiTig  v.  Barclay,  [1908]  A.  C.  35). 

Jus  disponevdi. — Where  there  is  a  contract  for  the  sale  of  specific 
goods,  or  where  goods  are  subsequently  appropriated  to  the  contract,  the 
seller  may,  by  the  terms  of  the  contract  or  appropriation,  reserve  the  right 
of  disposal  of  the  goods  until  certain  conditions  are  fulfilled ;  and  in  such 
a  case,  notwithstanding  the  delivery  of  the  goods  to  the  buyer,  or  to  a 
carrier  or  bailee  for  the  purpose  of  transmission  to  the  buyer,  the  property 
in  the  goods  does  not  pass  until  such  conditions  are  fulfilled.  Where  the 
goods  are  shipped,  and  by  the  bill  of  lading  they  are  deliverable  to  the 
order  of  the  seller  or  his  agent,  the  seller  is  primd  facie  deemed  to  reserve 
the  right  of  disposal ;  and  where  the  seller  draws  on  the  buyer  for  the 
price,  and  transmits  the  bill  of  exchange  and  bill  of  lading  to  the  buyer 
together  to  secure  acceptance  or  payment  of  the  bill  of  exchange,  the 
buyer  is  bound  to  return  the  bill  of  lading  if  he  does  not  honour  the  bill 
of  exchange,  and  if  he  wrongfully  retains  the  bill  of  lading  the  property 
in  the  goods  does  not  pass  to  him  (s.  19 ;  see  Gahn  v.  Pocket's,  etc.,  Co., 
[1898]  2  Q.  B.  61). 

Risk  of  Loss. — Unless  it  is  otherwise  agreed,  and  subject  to  the  usage 
of  any  particular  trade  (see  Bevington  v.  Bale,  1902,  7  Com.  Gas.  112), 
the  goods  remain  at  the  seller's  risk  until  the  property  therein  passes 
to  the  buyer,  and  then  they  are  at  the  buyer's  risk  whether  delivery 
has  been  made  or  not ;  provided  that  where  delivery  has  been  delayed 
through  the  fault  of  either  party  the  goods  are  at  the  risk  of  the  party 
in  fault  as  regards  any  loss  which  might  not  have  occurred  but  for  such 
fault  (s.  20 ;  see  Tarling  v.  Baxter,  1827,  6  Barn.  &  Cress.  360 ;  30  K.  E. 
355 ;  Inglis  v.  Stock,  1885,  10  App.  Cas.  263 ;  Martineau  v.  Kitching, 
1872,  L.  R.  7  Q.  B.  436). 

Transfer  of  Title. — Subject  to  certain  exceptions,  when  goods  are  sold 
by  a  person  who  is  not  the  owner  thereof,  and  who  does  not  sell  them 
under  the  authority  or  with  the  consent  of  the  owner,  the  buyer  acquires 
no  better  title  to  the  goods  than  the  seller  had,  unless  the  owner  is  by 
his  conduct  precluded  from  denying  the  seller's  authority  to  sell  (s.  21 ; 

White  V.  Spettigue,  1845,  13  Mee.  &  W.  603 ;  67  R.  R.  753 ;  Cooper  v. 

Willomatt,  1845, 1  C.  B.  672 ;  Cundy  v.  Lindsay,  1878,  3  App.  Cas.  459 ; 
Farquharson  v.  King,  [1902]  A.  C.  325 ;  as  to  sales  in  market  overt,  and 
sales  by  mercantile  agents  in  possession  of  goods  or  documents  of  title 
thereto  with  the  consent  of  the  owner,  and  by  persons  held  out  by  the 
owner  as  having  authority  to  sell,  see  Market  Overt  ;  Principal  and 

VOL.  XIIL  7 


98  SALE  OF  GOODS 

Agent).  Where,  however,  the  seller  has  a  voidable  title  to  the  goods, 
and  his  title  has  not  been  avoided  at  the  time  of  the  sale,  the  buyer 
acquires  a  good  title  thereto,  provided  he  buys  them  in  good  faith  and 
without  notice  of  the  seller's  defect  of  title  (s.  23 ;  as  to  the  meaning  of 
"  voidable  title,"  see  Cundy  v.  Lindsay,  1878,  3  App.  Gas.  459 ;  Stevemon 
V.  Newnham,  1853,  13  G.  B.  285;  Befdley  v.  Vihiont,  1887, 12  App.  Gas. 
471 ;  Load  v.  Gh-een,  1846, 15  Mee.  &  W.  216 ;  71 R.  R.  627 ;  King's  Norton 
Metal  Co.  v.  Edndge,  1897,  14  T.  L.  R.  98). 

Where  a  person  having  sold  goods  continues  or  is  in  possession  of  the 
goods,  or  of  the  documents  of  title  thereto,  the  delivery  or  transfer  by  him, 
or  by  a  mercantile  agent  acting  for  him,  of  the  goods  or  documents  of  title, 
under  any  sale,  pledge,  or  other  disposition  thereof,  to  any  person  receiving 
the  same  in  good  faith  and  without  notice  of  the  previous  sale,  has  the 
same  effect  as  if  the  person  making  the  delivery  or  transfer  were  expressly 
authorised  by  the  owner  of  the  goods  to  make  the  same  (s.  25  (1) ;  Factors 
Act,  1889,  s.  8).  And  where  a  person  having  bought  or  agreed  to  buy  goods 
obtains,  with  the  consent  of  the  seller,  possession  of  the  goods  or  the 
documents  of  title  thereto,  the  delivery  or  transfer  by  that  person  (see 
Nicholson  v.  Harper,  [1895]  2  Gh.  415),  or  by  a  mercantile  agent  acting 
for  him,  of  the  goods  or  documents  of  title,  under  any  sale,  pledge,  or 
other  disposition  thereof,  to  any  person  receiving  the  same  in  good  faith 
and  without  notice  of  any  lien  or  other  right  of  the  original  seller  in 
respect  of  the  goods,  has  the  same  effect  as  if  the  person  making  the 
delivery  or  transfer  were  a  mercantile  agent  in  possession  of  the  goods 
or  documents  of  title  with  the  consent  of  the  owner  (s.  25  (2) ;  Factors 
Act,  1889,  s.  9 ;  as  to  the  meaning  of  "mercantile  agent,"  and  the  effect 
of  a  delivery  or  transfer  by  such  an  agent,  see  Peincipal  and  Agent). 
A  hire-purchase  agreement  may  amount  to  an  agreement  to  buy  goods, 
for  this  purpose.  Whether  it  does  so  or  not  depends  upon  whether  the 
hirer  has  merely  an  option  to  buy  the  goods,  or  whether  he  is  bound 
under  the  agreement  to  pay  all  the  instalments,  subject  to  the  payment 
of  which  the  goods  are  to  become  his  property,  and  has  no  right  to  put 
an  end  to  the  agreement,  by  returning  the  goods  or  otherwise,  until  all 
of  such  instalments  have  been  paid  {Helby  v.  Matthews,  [1895]  A.  G. 
471 ;  Lee  v.  Butler,  [1893]  2  Q.  B.  318 ;  Thompsm  v.  Veale,  1896,  74  L.  T. 
130 ;  Hull  Ropes  Co.  v.  Adams,  1895,  65  L.  J.  Q.  B.  114 ;  Wylde  v.  Legge, 
1901,  84  L.  T.  121 ;  Muirhead  v.  Turnbull,  1905,  7  F.  686).  It  is  not 
necessary  that  the  agreement  to  buy  the  goods  should  be  in  writing, 
though  they  are  of  the  value  of  more  than  £10.  It  is  sufficient  if  the 
goods  or  documents  of  title  are,  with  the  consent  of  the  seller,  in  the 
possession  of  a  person  who  has  in  fact  agreed  to  buy  the  goods,  whether 
such  agreement  would  have  been  enforceable  by  action  or  not  (Hu^ill  v. 
Masker,  1889,  22  Q.  B.  D.  364). 

If  a  person  buys  goods  on  credit  with  the  fraudulent  intention  of  not 
paying  for  them,  the  seller  is  entitled  to  disaffirm  the  contract  within  a 
reasonable  time  after  discovery  of  the  fact,  although  he  has  notice  that 
the  buyer  has  committed  an  act  of  bankruptcy ;  and  on  such  disaffirma- 
tion  the  seller  is  entitled  to  the  goods  as  against  the  trustee  in  bankruptcy 
of  the  buyer  {Ln  re  Eastgate  ;  Ex  parte  Ward,  [1905]  1  K.  B.  465). 

A  writ  of  fieri  facias  or  other  writ  of  execution  against  goods  binds 
the  property  in  the  goods  of  the  execution  debtor  as  from  the  time  when 
the  writ  is  delivered  to  the  sheriff  to  be  executed ;  but  not  so  as  to  pre- 
judice the  title  to  such  goods  acquired  by  any  person  in  good  faith  and 
for  valuable  consideration  before  the  seizure,  unless  such  person  had  at 


SALE  OF  GOODS  99 

the  time  when  he  acquired  his  title  notice  that  such  writ  or  any  other 
writ  by  virtue  of  which  the  goods  might  be  seized  had  been  delivered  to 
and  remained  unexecuted  in  the  hands  of  the  sheriff  (s.  26).  The  term 
sheriff  includes  any  officer  charged  with  the  enforcement  of  a  writ  of 
execution  (s.  26  (2);  as  to  sales  under  executions  by  County  Court 
bailiffs,  see  Goodlock  v.  Cousins,  [1897]  Q.  B.  558;  Crane  v.  Ormerod, 
[1903]  2  K  B.  37). 

Performance  of  the  Contract. — It  is  the  duty  of  the  seller  to  deliver 
the  goods,  and  of  the  buyer  to  accept  and  pay  for  them,  in  accordance 
with  the  terms  of  the  contract  of  sale  (s.  27;  see  In  re  Salomon  and 
Naudszus,  1900,  81  L.  T.  325,  as  to  what  is  a  good  tender  of  documents 
of  title).  Unless  otherwise  agreed,  delivery  of  the  goods  and  payment 
of  the  price  are  concurrent  conditions,  that  is  to  say,  the  seller  must  be 
ready  and  willing  to  give  possession  of  the  goods  to  the  buyer  in  exchange 
for  the  price,  and  the  buyer  must  be  ready  and  willing  to  pay  the  price 
in  exchange  for  possession  of  the  goods  (s.  28).  Where  there  is  an  agree- 
ment that  credit  shall  be  given,  and  that  the  buyer  shall  give  an  accept- 
ation by  way  of  security,  the  period  of  credit  stands  although  the  buyer 
refuses  to  give  the  acceptance  {Robe  v.  Otto,  1904,  89  L.  T.  562).  The 
only  remedy  of  the  seller  in  such  a  case  is  to  sue  for  damages  for  the 
refusal  to  give  the  acceptance  {ibid.). 

Whether  it  is  for  the  buyer  to  take  possession  of  the  goods  or  for  the 
seller  to  send  them  to  him  depends  upon  the  contract,  express  or  implied, 
between  them.  Apart  from  any  such  contract,  the  place  of  delivery  is 
the  seller's  place  of  business,  if  he  have  one,  and  if  not,  his  residence ; 
provided  that  if  the  contract  is  for  the  sale  of  specific  goods,  which  to  the 
knowledge  of  the  parties  when  the  contract  is  made  are  in  some  other 
place,  then  that  place  is  the  place  of  delivery  (s.  29  (1)).  Where  goods 
were  sold  "  cost,  freight  and  insurance  to  buyer's  wharf,  Victoria  Docks," 
and  the  goods  being  discharged  elsewhere  than  at  buyer's  wharf,  certain 
•charges  were  payable  under  a  clause  in  the  bill  of  lading,  it  was  held  that 
these  charges  must  be  paid  by  the  seller  (Acnie  Wood-Mooring  Co.  v. 
Sutherland  Innes  Co.,  1904,  9  Com.  Cas.  170).  Where  the  seller  is  bound 
to  send  the  goods  to  the  buyer,  and  no  time  for  sending  them  is  fixed, 
they  must  be  sent  within  a  reasonable  time  (s.  29  (2)).  Unless  otherwise 
agreed,  the  expenses  of  and  incidental  to  putting  the  goods  into  a 
•deliverable  state  must  be  borne  by  the  seller  (s.  29  (5)). 

Subject  to  any  usage  of  trade  (see  Sod4t4  Anonyme,  etc.  v.  Scholefeld, 
1902,  7  Com.  Cas.  114),  special  agreement,  or  course  of  dealing  between 
the  parties,  if  the  seller  delivers  a  quantity  of  goods  less  than  he  con- 
tracted to  sell,  the  buyer  may  either  reject  them  (see  Harland  v.  Burstall, 
1901,  84  L.  T.  324),  or  accept  and  pay  for  them  at  the  contract  rate ;  if 
the  seller  delivers  a  larger  quantity  than  he  contracted  to  sell,  the  buyer 
may  either  accept  the  whole  of  the  goods  delivered  and  pay  for  them  at 
the  contract  rate,  or  accept  the  goods  bought  and  reject  the  rest,  or  reject 
the  whole ;  and  if  the  seller  delivers  the  goods  he  contracted  to  sell  mixed 
with  goods  of  a  different  description  not  included  in  the  contract,  the  buyer 
may  accept  the  goods  which  are  in  accordance  with  the  contract,  and  reject 
the  rest,  or  may  reject  the  whole  (s.  30 ;  see  In  re  Keighley  and  Bryan, 
1894,  70  L.  T.  155;  Aitken  v.  Boullen,  [1908]  S.  C.  490). 

Unless  otherwise  agreed,  the  buyer  is  not  bound  to  accept  delivery 
of  the  goods  by  instalments  (s.  31  (1)).  Where  there  is  a  contract  for 
the  sale  of  goods  to  be  delivered  by  stated  instalments,  which  are  to  be 
.separately  paid  for,  and  the  seller  makes  defective  deliveries  in  respect 


100  SALE  OF  GOODS 

of  one  or  more  instalments,  or  the  buyer  neglects  or  refuses  to  take 
delivery  of  or  pay  for  one  or  more  instalments,  it  is  a  question  in  each 
case  depending  on  the  terms  of  the  contract  and  the  circumstances  of 
the  case,  whether  the  breach  of  contract  is  a  repudiation  of  the  whole 
contract  or  whether  it  is  a  severable  breach  giving  rise  to  a  claim  for 
compensation  but  not  to  a  right  to  treat  the  whole  contract  as  repudi- 
ated (s.  31 ;  see  Hoare  v.  Rennie,  1859,  5  H.  &  N.  19 ;  Withers  v, 
Reynolds,  1831,  2  Barn.  &  Adol.  822 ;  36  E.  E.  782 ;  Honck  v.  Muller, 
1881,  7  Q.  B.  D.  92 ;  Mersey  Steel,  etc.,  Co.  v.  Naylm;  1884,  9  App.  Gas. 
434;  Renter  v.  Sala,  1879,  4  C.  P.  D.  239;  Simpson  v.  Crispin,  1872, 
L.  E.  8  Q.  B.  14;  Freeth  v.  Burr,  1874,  L.  E.  9  C.  P.  208 ;  Rhymney  Ely. 
V.  Brec(m,  etc.,  Rly.,  1900,  69  L.  J.  Ch.  813  ;  Ebhw  Vale  Steel,  etc.,  Co.  v. 
Blaina  Iron  Co.,  1900,  6  Com.  Gas.  33). 

Where  the  seller  is  authorised  or  required  to  send  the  goods  to  the 
buyer,  delivery  of  the  goods  to  a  carrier,  whether  named  by  the  buyer 
or  not,  for  the  purpose  of  transmission  to  the  buyer,  is  primd  facie 
deemed  to  be  a  delivery  to  the  buyer.  Unless  otherwise  authorised  by 
the  buyer,  the  seller  must  make  such  a  contract  with  the  carrier  as  is 
reasonable  having  regard  to  the  nature  of  the  goods  and  the  other 
circumstances  of  the  case ;  and  if  he  omits  to  do  so,  and  the  goods  are 
lost  or  damaged  in  course  of  transit,  the  buyer  may  decline  to  treat  the 
delivery  to  the  carrier  as  a  delivery  to  himself,  or  may  hold  the  seller 
responsible  in  damages  (see  Burstall  v.  Grimsdale,  1906,  11  Gom.  Gas. 
280).  Where  the  goods  are  sent  by  a  route  involving  sea  transit,  under 
circumstances  in  which  it  is  usual  to  insure,  the  seller  must,  unless  it  is 
otherwise  agreed,  give  such  notice  to  the  buyer  as  may  enable  him  to 
insure  the  goods,  and,  if  the  seller  fails  to  do  so,  the  goods  are  deemed 
to  be  at  his  risk  during  the  sea  transit  (s.  32).  Where  a  contract  for 
the  sale  of  cattle  on  cost,  insurance,  and  freight  terms,  provided  that 
the  insurance  should  be  against  all  risks,  it  was  held  that  a  policy 
containing  a  "  warranted  free  of  capture,  seizure,  and  detention  "  clause 
was  not  a  compliance  with  the  terms  of  the  contract,  although  the 
insertion  of  such  a  clause  is  as  between  broker  and  underwriters  usual 
in  an  "  all  risks  policy,"  and,  consequently,  that  the  seller  was  liable  to 
the  buyer  for  loss  owing  to  the  cattle  being  prevented  from  landing  by 
a  prohibition  of  the  Government  (Yuill  v.  Scott- Rohson,  [1907]  1  K.  B. 
685,  affirmed  [1908]  1  K.  B.  270).  Where  the  seller  agrees  to  deliver 
the  goods  at  his  own  risk  at  a  place  other  than  that  where  they  are 
when  sold,  the  buyer,  nevertheless,  unless  otherwise  agreed,  takes  any 
risk  of  deterioration  in  the  goods  necessarily  incident  to  the  course  of 
transit  (s.  33). 

Unless  otherwise  agreed,  the  seller  is  bound,  when  he  tenders- 
delivery  of  the  goods,  to  afford  the  buyer  a  reasonable  opportunity  of 
examining  them  for  the  purpose  of  ascertaining  whether  they  are  in 
conformity  with  the  contract;  and  the  buyer  is  not  deemed  to  have 
accepted  the  goods  unless  and  until  he  has  had  such  an  opportunity  of 
examining  them  (s.  34). 

The  buyer  is  deemed  to  have  accepted  the  goods  when  he  intimates 
to  the  seller  that  he  has  accepted  them,  or  when  the  goods  have  been 
delivered  to  him,  and  he  does  any  act  in  relation  to  them  which  is 
inconsistent  with  the  ownership  of  the  seller,  or  when,  after  the  lapse 
of  a  reasonable  time,  he  retains  the  goods  without  intimating  to  the 
seller  that  he  has  rejected  them  (s.  35).  Where  goods  which  had  been 
sold  by  sample  were  delivered  at  a  railway  station,  and  the  buyer,  after 


SALE  OF  GOODS  101 

having  received  from  the  railway  company,  and  inspected,  a  bulk 
sample,  directed  that  the  goods  should  be  sent  on  to  a  person  to  whom 
he  had  resold  them,  and  that  person  rejected  them  as  not  being  in 
accordance  with  the  contract,  it  was  held  that  the  original  buyer  had 
accepted  the  goods  by  ordering  them  to  be  sent  on  to  the  sub-purchaser 
after  having  inspected  a  sample  at  the  place  of  delivery,  and  that  he 
could  not  afterwards  reject  them  {Perkins  v.  Bell,  [1893]  1  Q.  B.  193 ; 
and  see  Harnor  v.  Groves,  1855,  15  C.  B.  667 ;  Cliapiian  v.  Morton, 
1843,  11  Mee.  &  W.  534;  63  R.  R  669;  Parker  v.  Palmer,  1821, 
4  Barn.  «&  Aid.  387 ;  23  E.  R.  313).  If  the  buyer  rejects  the  goods, 
having  a  right  to  do  so,  he  is  not  bound  to  return  them  to  the  seller, 
unless  he  has  agreed  to  do  so:  it  is  sufficient  if  he  intimates  to  the 
seller  that  he  refuses  to  accept  the  goods,  and  they  then  remain  at  the 
risk  of  the  seller,  and  it  is  his  duty  to  remove  them  (s.  36 ;  Okell  v. 
Smith,  1815,  1  Stark.  N.  P.  107;  18  R.  R.  752;  Grimoldhy  v.  Wells, 
1875,  L.  R.  10  C.  P.  391 ;  Head  v.  Tattersall,  1871,  L.  R.  7  Ex.  7).  In 
Moiling  v.  Bean,  1901,  18  T.  L.  R.  217,  the  plaintiffs,  who  were  colour 
printers  in  Germany,  contracted  to  supply  the  defendants  in  England 
with  books  for  sale  in  England  and  America.  Books  were  supplied,  and 
the  defendants,  without  inspecting  them,  sent  them  to  America,  where 
they  were  inspected  and  rejected  as  not  being  in  accordance  with  the 
contract.  The  books  were  sent  back  to  England,  and  the  defendants 
then  notified  the  plaintiffs  that  they  intended  to  reject  all  that  were 
not  saleable,  sold  some,  and  rejected  the  others.  It  was  held  that,  the 
books  not  being  in  accordance  with  the  contract,  the  defendants  were 
entitled  to  accept  some  of  them  and  reject  the  others,  and  to  recover 
the  cost  of  the  journey  from  England  to  America  and  back. 

Eights  of  Unpaid  Seller  against  the  Goods. — Notwithstanding  that 
the  property  in  the  goods  may  have  passed  to  the  buyer,  the  unpaid 
seller  of  goods,  as  such,  has  by  implication  of  law — {a)  a  lien  on  the 
goods  for  the  price  while  he  is  in  possession  of  them ;  (6)  in  case  of  the 
insolvency  of  the  buyer,  a  right  of  stopping  the  goods  in  transitii  after 
he  has  parted  with  the  possession  of  them ;  and  (c)  a  limited  right  of 
resale.  And  where  the  property  in  the  goods  has  not  passed  to  the 
buyer,  the  unpaid  seller  has,  in  addition  to  his  other  remedies,  a  right 
of  withholding  delivery  similar  to  and  coextensive  with  his  rights  of 
lien  and  stoppage  in  transitu  where  the  property  has  passed  (s.  39).  A 
seller  is  deemed  to  be  an  unpaid  seller  when  the  whole  of  the  price  has 
not  been  paid  or  tendered,  or  when  a  bill  of  exchange  or  other  negoti- 
able instrument  has  been  received  as  conditional  payment,  and  the 
condition  on  which  it  was  received  has  not  been  fulfilled  by  reason  of 
the  dishonour  of  the  instrument  or  otherwise  (s.  38 ;  see  Payment). 

The  unpaid  seller  of  goods  who  is  in  possession  of  them  is  entitled 
to  retain  possession  until  payment  or  tender  of  the  price — (a)  where 
the  goods  have  been  sold  without  any  stipulation  as  to  credit ;  {h)  where 
the  goods  have  been  sold  on  credit,  but  the  term  of  credit  has  expired ; 
or  (c)  where  the  buyer  becomes  insolvent;  and  he  may  exercise  this 
right  of  lien  notwithstanding  that  he  is  in  possession  of  the  goods 
as  agent  or  bailee  for  the  buyer  (s.  41 ;  see  Cfrice  v.  Richardson,  1877, 
3  App.  Cas.  319).  A  buyer  is  deemed  to  be  insolvent  if  he  has  ceased 
to  pay  his  debts  in  the  ordinary  course  of  business,  or  cannot  pay  them 
as  they  become  due,  whether  he  has  committed  an  act  of  bankruptcy  or 
not  (s.  62  (3) ;  see  In  re  Phcenix  Bessemer  Steel  Co.,  1877,  4  Ch.  D.  108). 
Where  the  seller  has  made  part  delivery  of  the  goods,  he  may  exercise 


102  SALE  OF  GOODS 

his  right  of  lien  or  retention  on  the  remainder,  unless  the  part  delivery 
was  made  under  such  circumstances  as  to  show  an  agreement  to  waive 
the  lien  (s.  42). 

The  unpaid  seller  loses  his  lien  or  right  of  retention  on  the  goods 
when  he  delivers  them  to  a  carrier  or  other  bailee  for  the  purpose  of 
transmission  to  the  buyer  without  reserving  the  right  of  disposal  of  the 
goods,  or  when  the  buyer  or  his  agent  lawfully  obtains  possession  of 
them,  or  by  waiver  of  the  lien ;  but  the  lien  or  right  of  retention  is  not 
lost  by  reason  only  that  the  seller  has  obtained  judgment  for  the  price 
of  the  goods  (s.  43 ;  see  Possessory  Lien). 

As  to  the  right  of  stoppage  in  transitu,  see  Stoppage  in  Transitu. 

The  unpaid  seller's  right  of  lien  or  retention  or  stoppage  in  transitu 
is  not  affected  by  any  sale  or  other  disposition  of  the  goods  which  the 
buyer  may  have  made,  unless  the  seller  has  assented  thereto :  provided 
that  where  a  document  of  title  to  goods  has  been  lawfully  transferred 
to  any  person  as  buyer  or  owner  of  the  goods,  and  that  person  transfers 
the  document  to  a  person  who  takes  the  document  in  good  faith  and 
for  valuable  consideration,  then,  if  such  last-mentioned  transfer  was  by 
way  of  sale,  the  unpaid  seller's  right  of  lien  or  retention  or  stoppage  in 
transitu  is  defeated,  and  if  by  way  of  pledge  or  other  disposition  for 
value,  such  right  can  only  be  exercised  subject  to  the  rights  of  the 
transferee  (s.  47 ;  Factors  Act,  1889,  s.  10).  The  expression  "  document 
of  title  "  includes  any  bill  of  lading,  dock  warrant,  warehousekeeper's 
certificate,  and  warrant  or  order  for  the  delivery  of  goods,  and  any  other 
document  used  in  the  ordinary  course  of  business  as  proof  of  the 
possession  and  control  of  goods,  or  authorising  or  purporting  to  authorise, 
either  by  indorsement  or  by  delivery,  the  possessor  of  the  document  to 
transfer  or  receive  goods  thereby  represented  (s.  62  (1) ;  Factors  Act, 
1889,  s.  1). 

The  contract  of  sale  is  not  rescinded  by  the  mere  exercise  by  the 
seller  of  his  right  of  lien  or  retention  or  stoppage  in  transitu ;  but  if, 
after  exercising  such  right,  he  resells  the  goods,  the  buyer  acquires  a 
good  title  thereto  as  against  the  original  buyer  (s.  48  (1)  and  (2)).  A 
declaration  of  insolvency  by  the  buyer  does  not  entitle  the  seller  to 
rescind  the  contract  unless  the  declaration  is  made  under  such  circum- 
stances as  to  show  that  the  buyer  cannot,  or  does  not  intend  to,  carry 
out  the  contract  {Mess  v.  Duffus,  1901,  6  Com.  Gas.  165). 

Where  the  goods  are  of  a  perishable  nature  or  where  the  unpaid 
seller  gives  notice  to  the  buyer  of  his  intention  to  resell,  and  the  buyer 
does  not  within  a  reasonable  time  pay  or  tender  the  price,  the  unpaid 
seller  may  resell  the  goods,  and  recover  from  the  original  buyer  damages 
for  any  loss  occasioned  by  his  breach  of  contract  (s.  48  (3)).  Where  a 
contract  for  the  sale  of  perishable  articles  provided  that  payment  should 
be  made  by  cash  in  exchange  for  shipping  documents,  it  was  held  that 
the  buyer  was  bound  to  pay  within  a  reasonable  time  after  the  shipping 
documents  were  tendered  to  him,  and  in  default  of  his  doing  so  the 
seller  was  entitled  to  resell  the  goods,  and  recover  the  loss  on  the  resale 
{Ryan  v.  Eidley,  1903,  8  Com.  Cas.  105).  So,  if  the  seller  expressly 
reserves  a  right  of  resale  in  the  event  of  the  buyer's  default,  and  on  the 
buyer  making  default,  resells  the  goods,  the  original  contract  of  sale  is 
thereby  rescinded,  but  without  prejudice  to  any  claim  the  seller  may 
have  for  damages  (s.  48  (4)). 

Remedies  of  the  Seller  for  Breach  of  Contract. — The  seller  may  main- 
tain an  action  against  the  buyer  for  the  price  of  the  goods — {a)  Where 


SALE  OF  GOODS  103 

the  property  in  the  goods  has  passed  to  the  buyer,  and  he  wrongfully 
refuses  or  neglects  to  pay  for  them  according  to  the  terms  of  the 
contract ;  or  (b)  where,  under  the  contract  of  sale,  the  price  is  payable 
on  a  day  certain  irrespective  of  delivery,  and  the  buyer  wrongfully 
neglects  or  refuses  to  pay  such  price,  though  the  property  in  the  goods 
has  not  passed,  and  the  goods  have  not  been  appropriated  to  the  contract 
(s.  49). 

Where  the  property  in  the  goods  has  not  passed  to  the  buyer,  and 
the  price  is  not  payable  on  a  day  certain  irrespective  of  delivery,  the 
seller  cannot  maintain  an  action  for  the  price ;  but  if  the  buyer  wrong- 
fully neglects  or  refuses  to  accept  and  pay  for  the  goods,  the  seller  may 
sue  him  for  damages  for  non-acceptance.  The  measure  of  damages  in 
such  an  action  is  the  estimated  loss  directly  and  naturally  resulting  in 
the  ordinary  course  of  events,  from  the  buyer's  breach  of  contract ;  and 
if  there  is  an  available  market  for  the  goods  in  question,  is  pHnid  fade 
to  be  ascertained  by  the  difference  between  the  contract  price  and  the 
market  price  at  the  time  when  the  goods  ought  to  have  been  accepted, 
or,  if  no  time  was  fixed  for  acceptance,  then  at  the  time  of  the  refusal 
to  accept  (s.  50 ;  and  see  Damages).  In  Roth  v.  Taysen,  1895,  73  L.  T. 
628,  a  cargo  of  maize  was  bought  on  May  24,  to  be  shipped  from  abroad 
about  July  15.  On  the  28th  of  May  the  buyer  repudiated  the  contract, 
and  on  the  24th  of  July  the  sellers  brought  an  action  for  non-acceptance, 
but  did  not  resell  the  goods  until  their  arrival  on  September  5.  The 
loss  on  the  resale  was  £3800 ;  but  the  prices  had  fallen  continuously,  and 
if  the  goods  had  been  resold  on  July  24,  the  loss  would  have  been  about 
£1500.  It  was  held  that  the  sellers  ought  to  have  resold  the  goods  on 
July  24,  when  they  elected  to  accept  the  buyer's  repudiation  of  the 
contract  by  bringing  an  action  for  non-acceptance,  and  that  the  proper 
measure  of  damages  was  £1500. 

In  Braithwaite  v.  Foreign  Hardwood  Co.,  [1905]  2  K.  B.  543,  the 
defendant  company,  having  contracted  to  buy  from  the  plaintiff"  a 
quantity  of  rosewood  to  be  shipped  by  instalments,  cash  against  bills  of 
lading,  repudiated  the  contract  on  grounds  which  did  not  justify  the 
repudiation  while  the  first  consignment  was  in  transitu.  The  bills  of 
lading  of  this  and  a  subsequent  consignment  were  tendered  to  the 
company  and  refused  on  the  grounds  already  mentioned,  and  there- 
upon the  plaintiff"  at  once  resold  the  wood  at  the  best  price  obtainable. 
In  the  action  for  breach  of  the  contract,  the  company  pleaded  that  it 
was  entitled  to  repudiate  the  contract  with  respect  to  the  first  consign- 
ment, because  the  wood  was  not  in  accordance  with  the  contract.  It 
was  held  that,  the  company  having  repudiated  the  contract  on  other 
grounds,  and  the  plaintiff"  having  accepted  such  repudiation  by  at  once 
reselling  the  wood,  the  plaintiff  was  absolved  from  the  performance 
of  the  condition  that  the  goods  should  be  in  accordance  with  the 
contract,  and  that  the  measure  of  damages  must  be  upon  the  footing 
that  the  consignment  was  according  to  contract. 

Where  the  buyer  wrongfully  neglects  or  refuses  to  take  delivery  of 
the  goods  within  a  reasonable  time  after  being  requested  to  do  so  by  the 
seller,  and  such  neglect  or  refusal  does  not  amount  to  a  repudiation  of 
the  contract,  the  buyer  is  liable  for  any  loss  occasioned  to  the  seller  by 
such  neglect  or  refusal,  and  also  for  a  reasonable  charge  for  the  care  and 
custody  of  the  goods  (s.  37). 

Remedies  of  the  Buyer. — Where  the  seller  wrongfully  refuses  or 
neglects  to  deliver  the  goods  to  the  buyer,  the  buyer  may  maintain  an 


104  SALE  OF  GOODS 

action  for  damages  for  non-delivery ;  the  measure  of  damages  being 
ascertained  on  the  same  principles  as  in  the  case  of  an  action  by  the 
buyer  for  non-acceptance  (s.  51 ;  see  supra ;  Agiits  v.  G.  W.  Colly.  Co., 
[1899]  1  Q.  B.  413  ;  M'Neill  v.  Richards,  [1899]  1  Ir.  E.  79  ;  Harland  r. 
Burstall,  1901,  84  L.  T.  324 ;  Ashmore  v.  Cox,  [1899]  1  Q.  B.  436 ;  and 
article  on  Damages)  ;  or,  if  the  buyer  has  paid  for  the  goods,  he  may, 
instead  of  bringing  an  action  for  damages,  elect  to  sue  for  the  return 
of  the  money  paid,  as  upon  a  total  failure  of  consideration,  and  such 
a  claim  is  a  liquidated  demand  (s.  54 ;  Biggerstaff  v.  Rowatt's  Wharf, 
[1896]  2  Ch.  93). 

In  an  action  for  non-delivery  of  specific  or  ascertained  goods  the 
Court  may,  if  it  thinks  fit,  on  the  application  of  the  plaintiff,  direct  that 
the  contract  shall  be  performed  specifically,  without  giving  the  defendant 
the  option  of  retaining  the  goods  on  payment  of  damages.  The  applica- 
tion by  the  plaintiff  may  be  made  at  any  time  before  judgment ;  and 
the  judgment  may  be  either  unconditional,  or  upon  such  terms  as  to 
damages,  payment  of  the  price,  and  otherwise,  as  to  the  Court  may 
seem  just  (s.  52). 

Where  there  is  a  breach  of  warranty  by  the  seller,  or  where  the 

buyer  elects,  or  is  compelled,  to  treat  a  breach  of  condition  as  a  breach 

of  warranty  (see  Leary  v.  Briggs,  1904,  6  F.  857),  the  buyer  is  not  by 

reason  only  of  such  breach  of  warranty  entitled  to  reject  the  goods  ;  but 

he  may  set  up  a  breach  of  warranty  in  diminution  or  extinction  of  the 

price,  or  he  may  maintain  an  action  against  the  seller  for  damages. 

When  goods  were  sold  "payment  net  cash  after  inspection  of  goods 

immediately  on  arrival  of  steamer,"  it  was  held  that  the  buyer  was  none 

the  less  entitled  to  claim  damages  if  the  goods  were  not  in  accordance 

with  the  contract,  because  he  did  not  inspect  the  goods,  or  because  he 

did  not  on  inspection  discover  the  defect  {Khan  v.  DucM,  1905, 10  Com. 

Cas.  87).     The  measure  of  damages  is  the  estimated  loss  directly  and 

naturally  resulting,  in  the  ordinary  course  of  events,  from  the  breach 

of  warranty;    and  in  the  case  of  a  breach  of  warranty  of  quality  is 

primd  facie   the   difference   between   the   value   of   the   goods  at  the 

time   of   delivery  to  the  buyer  and  the  value  they  would   have   had 

if   they  had  answered   to    the  warranty  (s.  53;    as  to  the   right   to 

recover   special  or  consequential  damages,   see  Smith  v.  Green,  1875, 

1  C.  P.  D.  92;  Randall  v.  Ra^er,  1858,  El.  B.  &  E.  84 ;  Moiling  v. 

Dean,  1901,  18  T.  L.  E.  217 ;  Crage  v.  Fry,  1903,  67  J.  P.  240 ;  Holden 

V.  BostocTc,  1902,  50  W.  E.  323 ;  Prince  of  Wales  Dry  Dock  Co.  v.  Foivnes 

Forge,  etc.,  Co.,  1904,  90  L.  T.  527;  Bostock  v.  Nicholson,  [1904]  1  K.  B. 

725 ;  and  see  Damages).    In  Ashworth  v.  Wells,  1898,  78  L.  T.  136, 

where  an  orchid  was  sold  at  a  sale  by  auction  with  a  warranty  that  it 

was  a  "  Cattleya  Acklandise  Alba,"  and  after  the  buyer  had  had  it  for 

two  years,  it  flowered  and  produced  a  purple  flower,  the  value  of  such 

a  plant  being  about  7s.   6d. ;  and  it  was  found  by  the  County  Court 

judge,  in  an  action  for  breach  of  warranty,  that  if  the  plant  had  been 

according  to  warranty  it  would  have  been  worth  about  £50,  but  that 

until  it  showed  its  real  nature  there  was  no  probability  that  an  orchid 

grower  would  give  more  than  £21  for  it,  it  was  held  that  on  this  finding 

the  plaintiff  was  entitled  to  recover  £50  damages. 

As  to  sales  by  auction,  see  Auction  ;  Auctioneer. 

[Authorities. — Benjamin  on  Sale ;  Blackburn  on  Sale  ;  Chalmers  on 

the  Sale  of  Goods  Act;  Campbell  on  Sale  of  Goods ;  Ker  and  Pearson-Gee 

on  the  Sale  of  Goods  Act ;  Smith,  Mercaiitile  Law  ;  Addison  on  Contracts ; 

Chitty  on  Contracts  ;  Leake  on  Contracts.l 


SALMON  FISHERY  105 

Sale  of  Settled  Estates. — See  Settled  Land  Acts. 
Salford  Court. — See  Inferior  Courts. 

Salmon  Fishery. — Salmon,  though  not  in  England  a  royal 
fish,  has  long  been  of  sufficient  importance  as  an  article  of  food  and 
sport  for  the  legislature  to  intervene  and  regulate  the  time  and  mode 
of  its  capture,  as  appears  from  the  series  of  general  and  local  Acts, 
beginning  with  13  Edw.  i.  st.  1,  c.  47,  and  repealed  in  1861  (24  &  25  Vict, 
c.  109,  schedule).  The  capture  of  salmon  is  now  regulated  under  a  series 
of  Acts— the  Salmon  Fishery  Acts  of  1861  (24  &  25  Vict.  c.  109),  1863 
(26  &  27  Vict.  c.  10),  1865  (28  &  29  Vict.  c.  121),  1870  (33  &  34  Vict, 
c.  33),  1873  (36  &  37  Vict.  c.  71),  1876  (39  &  40  Vict.  c.  19),  and  1907 
(7  Edw.  VII.  c.  15);  the  Fresh  Water,  etc..  Acts,  1878(41  &  42  Vict.  c.  39), 
1879  (42  &  43  Vict.  c.  26),  1886  (49  &  50  Vict.  c.  39),  and  1892  (55  &  56 
Vict.  c.  50).  These  "Acts,  originally  intended  to  deal  only  with  salmon 
and  migratory  fish  of  the  same  genus,  have  been  extended  to  include 
trout,  char  (Fresh  Water  Fisheries  Act,  1878,  c.  39,  ss.  6,  7),  and  all 
fresh-water  fish,  but  are  here  dealt  with  only  so  far  as  they  affect 
salmon,  trout,  and  char. 

Central  Supervision. — The  general  superintendence  of  salmon  fisheries 
was  from  1861  to  1886  under  the  Home  Office  (24  &  25  Vict.  c.  109, 
s.  31),  from  1886  to  1903  under  the  Board  of  Trade  (49  &  50  Vict.  c.  39), 
and  was  in  1903  transferred  to  the  Board  of  Agriculture  and  Fisheries 
(3  Edw.  VII.  c.  31, 8. 1  (2),  (4),  schedule).  The  superintendence  is  exercised 
by  inspectors  appointed  by  that  Board  (24  &  25  Vict.  c.  109,  s.  31,  as 
modified  by  3  Edw.  vii.  c.  31,  s.  1  (5)).  The  orders,  certificates,  or  other 
documents  issued  by  the  Board  are  proved  and  have  effect  as  directed 
by  sec.  7  of  the  Board  of  Agriculture  Act,  1889,  52  &  53  Vict.  c.  30,  which 
takes  the  place  of  sec.  4  of  the  Act  of  1886.  An  annual  report  is 
made  to  Parliament  as  to  the  operations  of  the  Board  and  its  inspectors 
(1861,  c.  109,  s.  32 ;  1865,  c.  121,  s.  5  ;  1886,  c.  39,  s.  6). 

The  powers  of  the  Board  include  that  of  creating  fishery  districts  by 
certificate,  altering  districts  (1873,  c.  71,  s.  5),  and  altering  the  number 
of  conservators  of  fisheries  (s.  9). 

Under  the  Act  of  1865  (ss.  39-55),  special  commissioners  were 
appointed  to  inquire  as  to  all  fixed  engines,  fishing  weirs,  and  fishing  mill 
dams  which  were  illegal  or  were  not  privileged  under  the  Act  of  1861, 
and  to  cause  the  removal  of  such  contrivances,  except  in  the  case  of  weirs 
not  having  a  legal  free  gap  or  fish  pass  where  the  owner  undertook  to 
put  one  in  before  January  1, 1875  (see  1873,  c.  71,  s.  51).  The  provisions 
of  Magna  Carta  and  other  early  statutes  which  prohibit  weirs  apply 
only  to  navigable  rivers,  and  mill  dams  in  non-navigable  rivers  are  legal 
within  the  Act  of  1861  (s.  12)  if  a  prescriptive  right  to  use  them  is 
proved  (see  Leconfield  v.  Lonsdale,  1870,  L.  E.  6  C.  P.  657,  where  the 
history  of  the  subject  is  fully  treated).  The  Act  does  not  apply  to  trout 
fisheries  {Barker  v.  Faulkner,  1898,  79  L.  T.  21),  The  labours  of  the 
commissioners  came  to  an  end  in  1873  (36  &  37  Vict.  c.  13),  and  their 
functions  are  now  discharged  to  some  extent  by  fishery  inspectors  or 
boards  of  conservators  under  sees.  46-56  of  the  Act  of  1873  (c.  71). 

Fishery  Districts. — Under  the  Act  of  1861,  a  county  council  can 
appoint  conservators  or  overseers  to  preserve  salmon  and  enforce  the 
Act  (1861,  c.  109,  s.  33 ;  1888,  c.  41,  s.  3  (xiii.)).  They  have  superseded 
the  justices  of  the  peace.    (See  Oke,  Fishery  Laws,  3rd  ed.,  81.)     The 


106  SALMON  FISHERY 

jurisdiction  of  a  county  council  extends  to  all  boroughs  in  the  county 
which  are  not  Quarter  Sessions  boroughs  or  which  being  such  boroughs 
had  a  population  in  1881  under  10,000  (1888,  c.  41,  s.  38  (2)  (c.)  (ii.)). 
In  a  county  borough  the  town  council  is  the  authority  (1865,  c.  121, 
8.  38 ;  1888,  c.  41,  s.  31).  Under  the  provisions  of  the  subsequent  Acts, 
the  Board  of  Agriculture,  etc.,  on  the  application  of  a  county  council, 
may  form  into  a  fishery  district  all  or  any  of  the  salmon  rivers  lying 
wholly  or  partly  in  the  county,  and  include  in  the  district  rivers  not 
situate  in  the  county.  The  limits  of  the  district  are  determined  by 
certificate  of  the  Board  (1888,  c.  41,  s.  31).  The  certificates  issued  up  to 
1893  are  listed  in  the  Index  to  Statutory  Rules  and  Orders,  1893  ed. 
Those  since  that  date  are  tabulated  in  the  volumes  of  Statutory  Rules 
and  Orders  for  1895,  p.  807 ;  1896,  p.  888 ;  1897,  p.  717 ;  1903,  p.  765  ; 
and  1905,  p.  1532.  Those  issued  after  1894  are  registered  as  Statutory 
Rules  and  put  on  sale  by  the  Stationery  Office. 

The  certificates  usually  define  the  district  by  reference  to  a  river  and 
its  tributaries  {Merricks  v.  Cadwallader,  1882,  51  L.  J.  M.  0.  20 ;  Hall  v. 
Eeid,  1882,  10  Q.  B.  D.  134w.).  These  include  ponds  made  by  damming 
a  stream  {Moses  v.  Iggo,  [1906]  1  K.  B.  516),  brooks  running  into  it 
{Evans  v.  Owen,  [1895]  1  Q.  B.  237),  but  not  artificial  reservoirs  formed 
out  of  or  draining  into  such  tributaries  {George  v.  Carpenter,  [1893] 
1  Q.  B.  505 ;  Harhottle  v.  Terry,  1882, 10  Q.  B.  D.  131),  even  though  the 
reservoirs  are  frequented  by  salmon,  trout,  or  char  {Stead  v.  Nicholas, 
[1901]  2  K.  B.  163). 

A  board  of  conservators  is  appointed  (1)  if  the  district  is  in  one 
county,  by  the  council ;  (2)  if  in  more  than  one,  by  a  joint  committee 
elected  by  the  councils  concerned ;  and  supersedes  conservators  under 
other  Acts,  charters,  or  custom  (1865,  c.  121,  s.  17  ;  1888,  c.  41,  s.  3  (xiii.)). 

Such  board  consists — 

(1)  Of  members  elected  by  the  councils  for  one  year,  but  re-eligible  (1865, 

c.  121,  s.  15). 

(2)  Of  ex  officio  members,  viz. — 

(a)  Owners  m-  occupiers  of  several  fisheries  in  the  district  assessed 

to  the  poor  on  a  gross  rental  of  £30. 

(b)  Owners  of  lands  in  the  district,  if  not  less  than  £100  annual 

value,  having  not  less  than  a  mile  of  frontage  to  a  salmon 
river  (1873,  c.  71,  ss.  26,  27,  28). 

(3)  Of  representative  members  in  districts  in  which  there  are  public  or 

common  rights  of  fishery  (1873,  c.  71,  s.  29). 

The  board  is  a  body  corporate  with  a  common  seal,  and  has  the 
following  powers: — 

(1)  To  alter  the  close  season  or  weekly  close  time  for  salmon  (1873, 
c.  71,  s.  39),  trout,  or  char  (1865,  c.  121,  s.  64 ;  1871,  c.  71,  s.  18 ;  1876,  c.  19, 
8. 4),  and  grant  leave  to  angle  during  close  time ;  (2)  to  fix  times  for  use 
of  the  gaff';  (3)  to  regulate  the  use  of  nets  (1873,  c.  71,  s.  39),  both  as  to 
the  description  and  mesh  {Clayton  v.  Peirse,  [1904]  1  K.  B.  233) ;  (4)  to 
issue  licences  to  fish  for  salmon,  trout,  or  char,  and  fix  and  vary  the 
licence  duty  (1865,  c.  121,  ss.  27  (2),  33,  34 ;  1873,  c.  71,  ss.  21,  39 ; 
1878,  c.  39,  s.  7  ;  Comhridge  v.  Harrison,  1895,  64  L.  J.  M.  0.  175).  In 
these  they  are  subject  to  the  control  of  the  Board  of  Agriculture ;  (5)  to 
license  possession  of  salmon,  etc.,  or  their  roe  for  artificial  propagation 
(1865,  c.  121,  s.  60) ;  (6)  to  appoint  water  bailiffs  and  persons  to  inspect 
weirs,  etc.  (1865,  c.  121,  s.  27  (1);  1884,  c.  11,  s.  3);  (7)  to  make  fish 


SALMON  FISHEEY  107 

passes  and  erect  gratings  to  keep  salmon  out  of  watercourses  (1873,  c.  71, 
s,  58) ;  (8)  to  purchase  for  removal  such  dams,  fishing  weirs,  fishing  mill 
dams,  or  fixed  engines,  and  do  such  works,  etc.,  as  they  may  deem 
expedient  in  the  interests  of  the  district  (1865,  c.  121,  s.  27  (3),  (4)) ; 
(9)  to  remove  illegal  weirs  or  fixed  engines  and  prosecute  offences  against 
the  Acts  (1865,  c.  121,  s.  27  (4)). 

The  receipts  and  expenses  of  a  board  are  subject  to  audit  by  the 
council  which  appoints  them,  and  are  submitted  annually  for  that  purpose. 
The  licence  duties  may  be  mortgaged  with  the  consent  of  the  Board  of 
Agriculture,  etc.,  to  defray  expenses  (1865,  c.  121,  ss.  28,  29).  By  the 
Fisheries  Act,  1891,  54  &  55  Vict.  c.  37,  s.  10,  a  county  or  borough 
council  may  contribute  towards  the  expenses  incurred  by  a  board  of 
salmon  conservators  in  exercise  of  their  powers  under  the  Sea  Fisheries 
Eegulation  Act,  1888,  51  &  52  Vict.  c.  54. 

Provisional  Orders. — By  the  Act  of  1907  (7  Edw.  vii.  c.  15),  power 
is  given  to  the  Board  of  Agriculture,  etc.,  to  make  Provisional 
Orders — 

(1)  Defining  a  fishery  area;  (2)  constituting  and  incorporating  a 
board  of  conservators,  and  abolishing  conservators  established  within 
the  area  under  the  Salmon  and  Fresh  Water  Fisheries  Acts,  and  trans- 
•  ferring  their  property  and  liabilities  to  the  new  conservators ;  (3)  apply- 
ing to  the  area  defined  and  the  conservators  created,  with  or  without 
modification,  all  or  any  of  the  Salmon  and  Fresh  Water  Fisheries  Acts, 
and  modifying,  in  relation  to  the  fisheries  within  the  area,  the  provisions 
of  those  Acts  which  relate  to  the  regulation  of  fisheries  or  of  any  local 
Act  relating  to  any  fishery  within  the  area ;  (4)  providing  for  imposition, 
collection,  and  recovery  of  contributions  to  be  assessed  on  private  fisheries 
regulated  by  the  order  or  on  the  owners  or  occupiers  thereof ;  (5)  re- 
quiring returns  to  be  made  by  persons  taking  fish  within  the  area; 
(6)  generally  regulating  the  fisheries  within  the  area ;  (7)  enabling  the 
conservators  to  acquire  by  purchase  or  on  lease  any  part  of  the  foreshore 
specified  in  the  order,  and  to  work  fixed  engines  for  salmon  thereon  subject 
to  conditions.  But  fixed  engines  are  subject  to  licence,  renewable  at 
intervals  not  exceeding  five  years  and  after  inquiry  as  to  the  effect  of 
the  engine  on  the  fisheries,  and  the  rents  and  profits  of  any  engines  are 
to  be  appropriated  to  secure  restriction  or  abolition  of  the  use  within 
the  area  of  nets  or  other  obstructions  to  the  passage  of  salmon. 

The  orders  have  no  force  unless  submitted  to  and  confirmed  by  Parlia- 
ment (s.  5  (1)).  If  on  submission  for  confirmation  a  petition  is  presented 
to  Parliament  against  any  such  order,  the  Confirmation  Bill,  so  far  as 
it  relates  to  the  order,  is  sent  to  a  select  committee,  before  which  the 
petitioners  may  appear  and  oppose,  as  in  the  case  of  a  Private  Bill 
(s.  5  (3)). 

Orders  so  confirmed  may  be  repealed,  revoked,  or  altered  by  a 
subsequent  order  so  confirmed  (s.  5  (4)).  Before  the  introduction  of 
a  confirming  Bill  the  Board  of  Agriculture  may  revoke  wholly  or  partially 
any  order  made  by  the  Board  (s.  5  (2)). 

Orders  can  be  made  only  on  the  application  of  a  conservancy 
board  under  the  Acts,  or  of  a  county  council,  or  of  persons  who  in  the 
opinion  of  the  Board  of  Agriculture,  etc.,  own  at  least  one  quarter  of  the 
private  fisheries  within  the  proposed  area,  or  constitute  a  majority  of 
the  persons  licensed  to  fish  on  public  waters  (s.  3).  The  applications 
when  made  are  advertised  (s.  3),  and  if  a  primd  fade  case  for  the  order 
is  made  a  local  inquiry  is  held  (s.  4). 


108  SALMON  FISHERY 

The  expenses  of  obtaining  the  orders  and  working  them  fall  on 
(a)  the  county  council,  or  (6)  the  conservators  (s.  6).  They  fall  in  case  (a) 
on  the  county  fund,  and  in  case  (b)  are  dealt  with  as  expenses  under  the 
Acts  (ss.  2,  1  (i.),  6). 

The  orders  are  not  to  apply  to  waters  in  which  the  business  of 
artificially  propagating  or  rearing  salmon  or  trout  is  carried  on  under 
a  licence  of  the  Board  of  Agriculture  (s.  2  (4)). 

Fishing  Weirs  and  Fishing  Dams. — In  the  case  of  dams  existing  in 
1861,  the  owner  of  the  fishery  or  the  conservators  of  the  district  may, 
with  the  consent  of  the  Board  of  Agriculture,  attach  a  fish  pass  to  the 
dam,  on  notice  to  the  owner  (1861,  c.  109,  s.  23 ;  1873,  c.  71,  ss.  50,  53). 
In  the  case  of  dams  erected  since  1861,  the  owner  of  the  dam  must 
insert  a  proper  fish  pass  or  the  Board  of  Agriculture  can  do  it  at  his 
expense  (1861,  s.  25).  The  passes  must  be  kept  properly  supplied  with 
water  (1861,  s.  26 ;  1873,  c.  71,  s.  53).  Power  to  approve  existing  passes 
is  given  (1871,  c.  71,  s.  52).  Salmon  may  not  be  fished  for  or  caught 
except  by  rod  and  line  within  50  yards  of  the  head  or  tail  race  of  a 
mill  or  within  50  yards  below  a  dam,  unless  there  is  a  proper  pass 
with  a  proper  flow  (1861,  c.  109,  s.  12  (2)).  Persons  who  injure  a  fish 
pass  or  make  it  ineffectual  are  subject  to  penalties  (1873,  c.  71,  s.  48). 

Fishing  weirs  and  fishing  mill  dams  lawfully  in  use  in  1861  may- 
continue  in  use,  subject  to  the  following  provisions : — 

(1)  They  must  have  properly  constructed  free  gaps  (1861,  c.  109, 
s.  28;  1865,  c.  121,  s.  32). 

(2)  Boxes,  cribs,  and  spur  walls  in  connection  with  them  must  be  of 
a  prescribed  construction  (1861,  ss.  29,  30). 

(3)  In  fishery  districts  the  necessary  licence  fees  must  be  paid. 
The  powers  of  the  conservators  as  to  inspecting  and  removing  weirs 

have  already  been  stated. 

Close  Time. — Subject  to  alteration  by  conservators  of  a  fishery  district, 
the  close  season  for  salmon  is  for  general  fishing  from  1st  September  to 
1st  February ;  for  fishing  by  putts  or  putchers  from  1st  September  to  1st 
May  (1879,  c.  26,  s.  2)  (see  Prosser  v.  Cadogan,  1906,  94  L.  T.  777) ;  and 
for  rod  fishing,  1st  November  to  1st  February.  Taking  fish  in  close 
time  entails  a  penalty  of  £5,  and  £2  for  each  fish  taken,  and  forfeiture 
of  the  fish  (1861,  c.  109,  s.  17).  All  fixed  engines  used  for  fishing, 
including  fishing  mill  dams  {Hodgson  v.  Little,  1864,  14  C.  B.  N.  S.  Ill ; 
Rossiter  v.  Pike,  1878,  4  Q.  B.  D.  24),  must  be  removed  within  thirty-six 
hours  of  the  commencement  of  the  close  time  (s.  18).  There  is  also 
a  weekly  close  time  throughout  the  year  from  noon  on  Saturday  till 
6  A.M.  on  Monday,  against  fishing  for  salmon  except  by  rod  and  line  (see 
JDavies  v.  Evans,  1902,  86  L.  T.  419).  Putts  or  putchers  {i.e.  moveable 
wire  gratings)  need  not  be  removed,  provided  that  some  device  is  used 
to  keep  fish  out  of  them  during  the  close  time.  A  free  passage  must  be 
left  during  weekly  close  time  (1861,  c.  109,  s.  22).  Taking  in  close  time 
entails  a  penalty  of  £5,  and  £1  per  fish  taken,  and  forfeiture  of  the  fish ; 
and  use  of  any  contrivance  to  prevent  or  deter  salmon  from  running 
up  during  close  time  is  punishable  (36  &  37  Vict.  c.  71,  s.  16).  The 
penalty  is  incurred  by  the  fishing,  whether  fish  are  taken  or  not  {Ruther 
V.  Harris,  1876,  1  Ex.  D.  97).  The  sale  of  salmon  is  prohibited  during 
the  close  season.  But  the  prohibition  does  not  extend  to  fish  caught 
outside  the  United  Kingdom,  nor  to  cured  salmon  lawfully  caught 
(1861,  Vict.  c.  10,  s.  3 ;  1865,  Vict.  c.  121,  s.  65 ;  1870,  Vict.  c.  33,  s.  3). 

The  export  of  unclean  salmon  and  of  any  salmon  caught  in  close 


SALMON  riSHEKY  109 

time  is  prohibited  (1861,  c.  10,  s.  3;  1865,  c.  121,  s.  65;  1870,  c.  33, 
s.  3),  Between  3rd  September  and  the  following  30th  April  the  pre- 
sumption in  case  of  salmon  entered  for  export  is  that  it  was  caught  in 
close  time. 

Begulation  of  Fishing. — The  following  modes  of  killing  or  taking 
salmon  are  illegal,  and  the  use  of  explosives  to  kill  fish  is  prohibited 
(1877,  c.  65;  1878,  c.  39,  s.  12):— 

(1)  Causing  or  knowingly  permitting  to  flow,  or  putting  or  know- 
ingly permitting  to  be  put  into  salmon  waters  any  liquid  or  solid  matter 
to  such  an  extent  as  to  cause  the  waters  to  poison  or  kill  fish  (1861, 
c.  109,  s.  5). 

Where  the  accused  has  a  legal  right  to  let  the  matter  into  the  water, 
he  can  exempt  himself  by  showing  that  he  has  done  his  best  to  render 
it  harmless,  and  he  is  entitled  to  claim  a  trial  in  the  High  Court  of  this 
issue  (1861,  c.  109,  ss.  6,  7). 

Poisoning  a  salmon  river  is  also  punishable  under  sec.  32  of  the 
Malicious  Damage  Act,  1861,  as  extended  in  1873  (c.  71,  s.  13.  See 
R.  V.  Vasey,  [1905]  2  K.  B.  748). 

(2)  Burning  the  water,  i.e.  using  a  light  to  catch  salmon  (1861,  c.  109, 
8.  8  (1)). 

(3)  Using  spears,  gaffs,  stroke-balls,  snatches,  otter  lathes  or  jacks, 
wires  or  snares,  or  other  like  instrument  to  catch  or  kill  salmon  (1861, 
c.  109,  s.  8  (2);  1873,  c.  71,  s.  18).  This  does  not  include  nets  with  too 
small  a  mesh  (Jones  v.  Davies,  [1898]  1  Q.  B.  405).  As  to  taking  out 
dying  fish  by  hand,  see  Stead  v.  Tillotson,  1900,  69  L.  J.  Q.  B.  240. 

(4)  Possessing  a  light  or  any  such  instrument  under  circumstances 
satisfying  the  Court  that  he  meant  to  use  them  to  catch  or  kill  salmon 
(1861,  c.  109.  8.  8  (3)). 

(5)  Using  fish  roe  for  fishing ;  or  buying,  selling,  or  exposing  for  sale, 
or  possessing  salmon  roe  or  young  of  salmon  (1861,  c.  109,  s.  9 ;  1873, 
c.  71,  s.  18  (6)).  This  does  not  apply  when  the  roe  is  possessed  for 
artificial  propagation  or  other  scientific  purposes,  if  the  possessor  has 
a  consent  from  the  conservators  of  the  district  (1865,  c.  121,  s.  60). 

The  provisions  (2),  (3),  (4),  (5)  have  been  extended  to  trout  and  char 
in  waters  which  they  frequent  (1865,  c.  121,  s.  64;  1871,  c.  71,  s.  18  (7); 
1884,  c.  11,  s.  4). 

(6)  Use  of  nets  to  take  salmon  which  have  a  mesh  of  less  than  two 
inches  in  dimension  from  knot  to  knot  (1861,  c.  109,  s.  10). 

Where  draft  nets  or  sieves  are  used  across  the  whole  of  a  river,  or 
over  three-quarters  of  its,  width,  a  second  net  may  not  be  shot  within 
a  hundred  yards  of  the  line  of  shot  of  the  first  net  (1873,  c.  71,  s.  14). 

(7)  Use  of  fixed  engines  to  catch  salmon  (other  than  fishing  weirs  and 
fishing  mill  dams)  in  inland  or  tidal  waters.  But  this  does  not  prevent 
any  ancient  right  or  mode  of  fishing  lawfully  exercised  in  1861  by  grant, 
charter,  or  immemorial  usage  (1861,  c.  109,  s.  11;  1865,  c.  121,  s.  39; 
Thomas  v.  Jones,  1864,  34  L.  J.  M.  C.  45 ;  Rawstoriu  v.  Backhmtse,  1867, 
L.  K.  3  C.  P.  67 ;  Gamdt  v.  Backhouse,  1867,  L.  R.  3  Q.  B.  30 ;  Holford 
V.  Gem-ge,  1868,  L.  R  3  Q.  B.  639 ;  Watts  v.  Lucas,  1871,  L.  R.  6  Q.  B. 
226 ;  Gore  v.  Special  Commissioners  for  English  Fisheries,  1871,  L.  R. 
6  Q.  B.  561). 

(8)  Use  of  dams  for  catching  or  facilitating  the  catching  of  salmon, 
except  weirs  and  mill  dams  lawfully  in  use  in  1861  by  virtue  of  grant, 
charter,  or  immemorial  usage  (1861,  c.  109,  s.  12;  Leconfeld  (Farl)  y. 
Lonsdale  {Earl),  1870,  L.  R.  5  C.  P.  567). 


110  SALUTE 

(9)  Failure  to  erect  gratings  to  prevent  the  passage  of  salmon  or  fry 
into  artificial  streams  (1861,  c.  109,  s.  13). 

(10)  Wilfully  taking  or  destroying,  buying  or  selling,  unclean  or 
unseasonable  salmon,  or  the  young  of  salmon,  or  disturbing  spawning 
beds  or  fish  while  spawning  (1861,  c.  109,  ss.  14-16,  as  amended  in 
1873,  c.  71,  s.  18  (3)). 

(11)  Fishing  in  any  way  without  a  licence,  or  not  producing  the 
licence  to  a  water  bailiff  or  constable  (1865,  c.  121,  ss.  35-37). 

Legal  Proceedings. — Proceedings  for  offences  under  the  Acts  may  be 
taken — 

(1)  By  any  member  of  the  public  (1891,  c.  37,  s.  13)  (see  R.  v.  Cuhitt, 

1889,  22  Q.  B.  D.  622). 

(2)  By  boards  of  conservators  (1865,  c.  121,  s.  27  (4)),  or  officers  or 
persons  authorised  by  them  (1873,  c.  71,  s.  62). 

(3)  By  water  bailiffs  (1891,  c.  37,  s.  13;  see  Anderson  v.  Hamlin, 

1890,  25  Q.  B.  D.  221). 

A  conservator  who  has  voted  for  a  prosecution  may  not  sit  as  a 
justice  to  determine  it  (B.  v.  Henley,  [1892]  1  Q.  B.  504).  A  con- 
servator is  not  disqualified  from  acting  as  a  J.P.  because  he  is  a  con- 
servator or  a  subscriber  to  a  society  for  protecting  salmon  or  trout ;  but 
he  cannot  adjudicate  in  respect  of  an  offence  committed  on  his  own  land 
(1865,  c.  121,  8.  61). 

The  proceedings  may  be  instituted — 

(1)  Wherever  the  salmon,  trout,  or  char  are  found  to  which  the  pro- 
ceedings relate  (1892,  c.  50,  s.  4). 

(2)  On  either  side  of  a  river  bounding  two  counties  (1861,  c.  109,  s.  36 ; 
42  &  43  Vict.  c.  49,  s.  46). 

(3)  Where  the  offence  is  on  the  sea  coast,  or  at  sea  beyond  the  ordinary 
jurisdiction  of  a  J.P.,  in  the  adjoining  county  (1861,  c.  109,  s.  37 ;  42  &  43 
Vict.  c.  49,  s.  46). 

Warrants  may  be  issued  by  justices  to  search  places  in  which 
offences  are  suspected  to  have  been  committed  (1861,  c.  109,  s.  34 ; 
1865,  c.  121,  s.  31). 

Increased  penalties  are  incurred  by  persons  twice  convicted  of 
certain  of  the  offences  already  specified  (1865,  c.  121,  s.  56),  which 
involve  a  right  in  the  accused  to  elect  for  trial  by  jury  (42  &  43  Vict, 
c.  49,  s.  17). 

Penalties  imposed  by  the  Acts  are  recoverable  before  a  Court  of 
summary  jurisdiction,  subject  to  an  appeal  to  Quarter  Sessions  (1865, 
•c,  121,  s.  66).  The  six  months'  limitation  for  prosecution  (under  11  & 
12  Vict.  c.  43,  s.  11)  applies  (Morris  v.  Duncan,  [1899]  1  Q.  B.  4).  The 
procedure  on  appeal  is  regulated  by  the  Summary  Jurisdiction  Acts, 
1879  (s.  31)  and  1884.  The  parties  may  proceed  by  special  case  in  lieu 
-of  appeal  (Garnett  v.  Backhouse,  1868,  L.  R.  3  Q.  B.  699). 

[Authority. — Oke,  Fishery  Laws,  3rd  ed.,  1903.] 

Sa.IU'te. — The  usage  of  nations  has  established  certain  maritime 
ceremonials  to  be  observed,  either  on  the  ocean  or  in  the  territorial 
waters  of  a  particular  State.  Among  these  is  the  salute  by  striking  the 
flag  of  the  sails  or  by  firing  a  certain  number  of  guns  on  approaching  a 
fleet  or  a  ship  of  war  on  entering  a  fortified  port  or  harbour.  Every 
sovereign  State  has  the  exclusive  right,  in  virtue  of  its  independence 
and  equality,  to  regulate  the  maritime  ceremonial  to  be  observed  by  its 
■own  vessels  towards  each  other,  or  towards  those  of  another  nation,  on 


SALVAGE 


111 


the  high  seas,  or  within  its  own  territorial  jurisdiction.  It  has  a  similar 
right  to  regulate  the  ceremonial  to  be  observed  within  its  own  exclusive 
jurisdiction  by  the  vessels  of  all  nations,  as  well  with  respect  to  each 
other  as  towards  its  own  fortresses  and  ships  of  war,  and  the  reciprocal 
honours  to  be  rendered  by  the  latter  to  foreign  ships.  These  regulations 
are  established  either  by  its  own  municipal  ordinances  or  by  reciprocal 
treaties  with  other  maritime  powers  (see  Wheaton,  Elements  of  Imter- 
national  Law,  4th  Eng.  ed.,  1904,  s.  160,  p.  258). 
See  Ceremonial. 

Sa.Iva.Cior. — Area  and  Earlier  History. — The  Central  American 
Republic  of  Salvador  lies  on  the  Pacific  coast,  and  has  an  area  of  7225 
square  miles  or  about  the  size  of  Wales,  and  is  by  far  the  smallest  of 
the  republics  of  Central  America. 

Salvador  was  conquered  by  the  Spaniards  in  the  early  part  of  the 
16th  century,  and  revolted  from  Spain  300  years  later.  In  1823  it 
joined  the  Federal  Union  of  the  5  central  American  States  (see 
articles  Costa  Rica,  Guatemala,  Honduras,  and  Nicaragua),  and  on 
the  dissolution  of  the  Union,  Salvador  became  an  independent  Republic 
in  1839.  Spain  only  acknowledged  the  independence  of  the  Republic 
in  1842. 

Constitution  and  Courts  of  Law. — The  Constitution  dates  from  1824, 
and  has  been  subsequently  frequently  modified.  The  Executive  authority 
is  in  a  President  elected  by  direct  vote  for  4  years  and  ineligible  for 
re-election  for  4  years,  who  is  assisted  by  a  Vice-President  and  4 
Ministers  of  State.  The  legislative  power  is  in  a  congress  of  70 
deputies,  elected  by  universal  suffrage  for  one  year,  of  whom  42  mem- 
bers must  be  proprietors.  For  the  purposes  of  local  administration 
the  Republic  is  divided  into  14  departments,  each  administered  by  a 
governor  appointed  by  the  central  executive.  The  municipalities  are 
administered  by  alcaldes,  regidores,  and  other  officials  elected  by  the 
inhabitants.  For  judicial  purposes  there  is  a  Supreme  Court  and 
district,  circuit,  and  local  Courts. 

Application  of  Imperial  Acts. — By  Order  in  Council  of  December  16, 
1882  (St.  R.  &  0.,  Rev.  1904,  vol.  v.,  "  Fugitive  Criminal,"  p.  209).  the 
Imperial  Extradition  Acts  have  been  applied  to  Salvador  in  accordance 
with  the  Treaty  of  June  23,  1881. 

Provision  is  made  by  Order  in  Council  of  June  11,  1863  {ibid., 
vol.  viii.,  "  Merchant  Shipping,"  p.  88),  for  the  apprehension  and  carry- 
ing back  of  seamen  deserting  from  ships  of  the  Republic  in  whatever 
part  of  His  Majesty's  dominions  they  may  be  found. 

[See  Statesman's  Year-Book  ;  Encydopcedia  Britannica.] 


Salvage. 


TABLE  OF  CONTENTS. 


1.  What  it  is  ... 

2.  Essentials  of  Salvage  Service 

3.  Subjects  of  Salvage    . 

4.  Who  may  be  Salvors 

5.  Remedies  of  Salvors  . 

6.  What  are  Salvage  Services 


111 
113 
115 
118 
121 
122 


7.  Amount  of  Salvage  Reward 

8.  Apportionment 

9.  Contribution  in  Salvage   . 

10.  Agreement  as  to  Salvage  . 

11.  Military  Salvage 


123 
126 
129 
131 
134 


1.   What  it  is. — The  term  salvage  may  mean  a  thing  saved,  as  in 
marine  and  fire  policies  (see  Fire  and  Marine  Insurance),  or  the  service 


112  SALVAGE 

of  saving  a  thing  at  risk  at  sea,  or  the  reward  for  doing  so.  It  is  only 
with  the  two  latter  that  this  article  deals. 

There  are  two  kinds  of  salvage  in  this  sense — military  and  civil. 
Military  salvage  is  a  service  whereby  maritime  property  is  rescued 
from  the  enemy  in  time  of  war  or  from  pirates  in  time  of  peace.  Civil 
salvage  is  a  service  which  saves  or  helps  to  save  maritime  property — 
a  vessel,  its  apparel,  cargo,  or  wreck — or  lives  of  persons  belonging  to 
any  vessel  when  in  danger  either  at  sea  or  on  the  shore  of  the  sea,  or 
in  tidal  waters,  or  on  the  shore  of  tidal  waters,  if  and  so  far  as  the 
rendering  of  such  service  is  voluntary  and  attributable  neither  to  legal 
obligation,  nor  to  the  interest  of  self-preservation,  nor  to  the  stress  of 
official  duty  (Kennedy,  Civil  Salvage  (1907),  2).  In  either  case  the 
person  rendering  the  service  or  salvor  is  entitled  to  be  rewarded,  and  the 
word  salvage  is  used  indifferently  to  denote  the  service  or  the  reward. 
{ibid.,  1). 

The  scope  of  salvage  cannot  be  extended  beyond  the  objects  to 
which  the  maritime  law  of  the  country  confines  it ;  consequently  salvage 
cannot  be  given  for  any  property  at  sea  other  than  a  ship,  her  apparel 
or  cargo,  or  property  which  had  formed  part  of  these,  or  freight  being 
earned  by  the  carriage  of  the  cargo.  Thus  a  gas  float  used  as  a  beacon 
in  a  navigable  fairway  of  a  port,  which  cannot  be  used  for  navigation, 
and  is  incapable  of  being  towed,  being  neither  a  ship,  vessel,  or  wreck, 
although  it  is  a  structure  used  in  connection  with  navigation  and 
exposed  ordinarily  to  sea  perils,  is  not  a  subject  of  salvage  {The 
Gas  Float  Whitton,  No.  2,  [1897]  A.  C.  337).  [ 

The  origin  of  this  right  to  reward  is  said  to  be  derived  from  the 
principle  of  the  Eoman  law. 

Both  forms  of  salvage  service  resolve  themselves  into  the  equity  of 
rewarding  spontaneous  services  rendered  in  protection  of  the  lives  and 
property  of  others.  This  is  a  general  principle  of  natural  equity,  and  it 
was  considered  as  giving  a  cause  of  action  in  the  Roman  law,  and  from 
that  source  it  was  adopted  by  jurisdictions  of  this  (Admiralty)  nature 
in  the  different  countries  of  Europe  (Sir  C.  Robinson,  The  Calypso,  1828, 
2  Hag.  Adm.  209,  217). 

Military  salvage  is  really  part  of  the  law  of  prize,  and  is  dealt  with 
separately  in  this  article. 

The  right  to  civil  salvage  has  been  recognised  and  enforced  in  the 
Admiralty  Court  from  very  early  times  with  regard  to  maritime  pro- 
perty on  the  high  seas,  and  statutes  have  extended  this  jurisdiction  to 
the  limits  given  in  the  definition  above;  but  it  was  never  recognised 
at  common  law,  and  consequently  the  Admiralty  Court  obtained  sole 
cognisance  of  questions  of  salvage.  This  right  of  a  salvor  is  essentially 
independent  of  contract  (Sir  J.  Hannen,  Five  Steel  Barges,  1890,  15  P.  D. 
142,  146),  and  his  motives  are  immaterial,  e.g.  a  salvor  can  render 
salvage  service  to  a  ship  which  he  thinks  is  his  own,  but  in  fact  is  not 
{The  Liffey,  1887,  6  Asp.  255,  256);  though  it  is  not  inconsistent  with 
it,  and  a  salvor  who  has  contributed  even  to  a  small  extent  to  the 
ultimate  safety  of  a  ship,  is  not  wholly  disentitled  to  reward,  because 
he  acted  under  an  express  agreement  which  he  has  failed  to  perform 
{The  Eestia,  [1895]  P.  93). 

In  addition  to  this  principle  of  its  origin,  salvage  rests  on  another, 
namely,  public  policy.  Salvage  is  governed  not  by  the  ordinary  rules 
which  prevail  in  mercantile  transactions  on  shore,  but  by  a  due  regard 
to  benefit  received,  combined  with  a  just  regard  for  the  general  interest 


SALVAGE  113 

of  ships  and  marine  commerce  (Dr.  Lushington,  The  Fusilier,  1865, 
B.  &  L.  341,  347).  This  article  deals  with  civil  salvage  on  the  lines 
laid  down  in  Kennedy,  Civil  Salvage.  For  the  details  of  practice,  see 
Williams  and  Bruce,  Admiralty  Practice. 

2.  Essentials  of  Salvage  Service. — There  are  three  essentials  of  a 
salvage  service — {a)  Danger  to  the  subject  of  the  service ;  (Jb)  the  service 
must  be  a  voluntary,  and  not  an  obligatory  act  of  the  salvor;  and, 
generally,  (c)  the  service  must  have  been  successful. 

As  regards  {a),  the  salvor  must,  in  order  to  claim  reward,  show  that 
the  service  was  dangerous  {The  Wilhelmine,  1842,  1  N.  C.  376,  378); 
for  the  end  of  the  danger  is  the  end  of  the  service  {The  Endeavour, 

1848,  6  Moo.  P.  C.  334). 

All  services  rendered  at  sea  to  a  vessel  in  distress  are  salvage 
services.  .  .  .  The  distress  need  not  be  immediate  or  absolute.  ...  It 
is  sufficient  if  there  is  a  state  of  difficulty  and  reasonable  apprehension 
(Dr.  Lushington,  The  Charlotte,  1848,  3  Rob.  W.  68,  71 ;  The  Phantom, 
1866,  L.  R.  1  Ad.  &  Ec.  58,  60 ;  The  Strathnaver,  1875, 1  App.  Cas.  58,  65  ; 
see,  e.g.  The  Albion,  1861,  Lush.  282  ;  The  Ell(yra,  1862,  Lush.  550 ; 
The  Thomas  Allen,  1886,  6  Asp.  99 ;  The  Ella  Constance,  1864,  33  L.  J. 
Ad.  191 ;  The  Charlotte  Wylie,  1846,  2  Rob.  W.  495 ;  Tfie  Aglaia,  1888, 
13  P.  D.  160).  The  danger  must  be  real  and  sensible,  but  need  not  be 
absolute  or  immediate;  it  must  be  so  near,  so  much  a  just  cause  of 
present  apprehension  that  in  order  to  escape  or  avoid  it  no  reasonably 
prudent  or  skilful  seaman  in  charge  of  the  venture  would  refuse  the 
salvor's  help  if  it  were  offered  to  him,  upon  the  condition  of  his  paying 
for  it  the  salvor's  reward  (Kennedy,  24).  But  in  cases  of  towage  of 
a  damaged  ship,  a  liberal  view  is  taken  of  the  danger  required  to 
make  the  service  a  salvage  one,  and  the  towage  is  regarded  as  a  salvage 
service,  while  towage  proper  is  confined  to  service  rendered  to 
"  vessels  that  have  received  no  injury  or  damage,"  and  is  described  as 
"  the  employment  of  one  vessel  to  expedite  the  voyage  of  another  where 
nothing  more  is  required  than  the  acceleration  of  her  progress  "  (Dr. 
Lushington,  The  Reward,  1841,  1  Rob.  W.   174 ;  The  Princess  Alice, 

1849,  3  Rob.  W.  138 ;  approved  in  The  Strathnaver,  1875,  1  App.  Cas. 
58,  63).  The  statement  in  Akerhlom  v.  Price,  1880,  7  Q.  B.  129,  135, 
that  "  in  order  to  found  a  claim  for  salvage  reward  it  is  absolutely 
essential  that  the  ship  should  be  in  imminent  danger  of  being  lost,  and 
should,  by  the  service,  be  saved  from  such  danger,"  if  taken  in  its  full 
sense  is  inconsistent  with  other  statements  of  the  law,  and  should,  it 
seems,  be  confined  to  the  case  then  under  discussion — salvage  service  by  a 
pilot.  The  danger  may  be  a  real  one,  in  the  particular  case,  although 
it  would  not  be  so  generally,  e.g.  if  a  ship  is  in  charge  of  an  unskilful 
master  who  does  not  know  the  locality  {TJie  Eugenie,  1844,  3  N.  C.  430)  ; 
and  under  the  M.  S.  A,  1894,  as  by  the  old  practice  of  the  Admiralty 
Court,  a  ship  showing  signals  of  distress  without  cause  is  liable  to  pay 
compensation  for  any  labour  undertaken,  risk  incurred,  or  loss  sustained 
(by  other  ships)  in  consequence  of  such  signal  having  been  supposed  to 
be  a  signal  of  distress,  and  such  compensation  may  without  prejudice 
to  any  other  remedy  be  recovered  in  the  same  way  as  salvage  is 
recoverable  (s.  434 ;  The  Elsunck  Park,  [1904]  P.  76 ;  9  Asp.  481 ; 
Kennedy,  27). 

As  regards  (h),  the  salvor  must  be  free  from  any  obligation  towards 
the  property  salved  (Lord  Stowell,  The  Neptune,  1824,  1  Hag.  Adm. 
227,   236;   Brett,  L.J.,  Cargo  ex  Schiller,   1877,   2    P.   D.   145,  149). 

VOL.  XIII.  8 

/ 


114  SALVAGE 

Although  there  is  a  moral  obligation  to  assist  in  saving  life  or  property 
at  sea,  and  "  the  duty  of  all  ships  (is)  to  give  succour  to  others  in 
distress,  and  none  but  a  freebooter  would  withhold  it  "  (Lord  Stowell, 
The  Waterloo,  1820,  2  Dod.  433,  437),  there  is  no  legal  justification  for 
deviation  at  sea  in  order  to  save  property,  though  there  is  for  deviation 
in  order  to  save  life  {Scarajnanga  v.  Stamp,  1880,  5  C.  P.  D.  295 ;  see 
Deviation). 

Services  are  voluntary  if  there  is  no  contractual  or  official  duty  to 
render  them.  Thus  neither  the  master,  crew,  or  pilot  navigating  the 
ship,  nor  the  owner  or  crew  of  a  tug  towing  under  a  contract  of  towage, 
nor  the  ship's  agent,  nor  Government  officials,  nor  passengers  (see  post) 
can  claim  salvage  for  services  rendered  by  them  towards  the  safety  of 
the  ship  or  those  on  board  her,  except  under  special  circumstances.  In 
the  case,. however,  of  the  statutory  obligation  on  ships  which  have  been 
in  collision  to  stand  by  each  other  and  render  assistance  if  required,  it 
has  been  held  that  salvage  may  be  claimed  for  performing  this  statutory 
duty,  provided  that  the  ship  claiming  it  was  not  the  cause  of  the  collision 
or  the  damage  resulting  therefrom  (The  Hannibal  v.  The  Queen,  1867, 
L.  E.  2  Ad.  &  Ec.  53,  Sir  R.  Phillimore) ;  but  it  has  been  also  decided 
that  in  such  a  case,  if  the  services  rendered,  though  of  a  salvage  nature, 
are  not  extraordinary  in  character,  no  salvage  can  be  claimed  (The  Beta, 
1884,  5  Asp.  276,  Butt,  J.).  Where  a  collision  has  taken  place,  the  ship 
which  is  in  fault  cannot  claim  salvage  for  rendering  service  to  the  other 
ship  in  order  to  avert  a  danger  caused  by  that  collision  (Cargo  ex  Capella, 
1867,  L.  R  1  Ad.  &  Ec.  356 ;  The  Glengaber,  1872,  L.  R.  3  Ad.  &  Ec. 
534  ;  The  Due  d'Aumale,  [1904]  P.  60  ;  9  Asp.  502). 

On  the  other  hand,  a  salvor  cannot  free  himself  on  a  ship  in  distress, 
and  a  salvor  who  excludes  the  crew  from  their  ship,  which  they  had 
temporarily  left,  may  forfeit  his  right  to  salvage  reward  unless  the  circum- 
stances justify  it  (The  Elise,  [1899]  W.  N.  54 ;  and  see  Dekelict).  But 
constructive  acceptance  of  salvage  assistance  is  sufficient,  and  services 
are  presumed  to  be  accepted  where  the  circumstances  are  such  that  a 
prudent  master  would  have  done  so  (The  Vandyck.,  1881,  7  P.  D.  42 ; 
5  Asp.  17  ;  The  Auguste  Legembre,  [1902]  P.  123 ;  9  Asp.  279  ;  The  Emilie 
Galline,  [1903]  P.  206  ;  9  Asp.  401). 

(c)  Thirdly,  success  is  generally  necessary,  at  least  to  the  extent  of 
the  service  contributing  to  the  ultimate  safety  of  the  property  in  danger, 
or  no  salvage  can  be  claimed ;  "  for  salvage  reward  is  for  benefits  actually 
conferred,  not  for  a  service  attempted  to  be  rendered"  (The  Zephyrus, 
1842, 1  Eob.  W.  329,  330 ;  The  Killeena,  1881,  6  P.  D.  193 ;  The  Camellia, 
1883,  9  ibid.  27 ;  The  City  of  Chester,  ibid.  202).  If,  however,  the 
claimant's  act  materially  contributes  to  the  safety  of  the  property  in 
peril,  he  is  entitled  to  salvage  reward,  although  what  he  did  standing  by 
itself  would  not  have  produced  that  result  of  safety  (see  The  Atlas,  1862, 
Lush.  518  P.  C. ;  The  Jonge  Bastiaan,  1804,  5  Rob.  C.  322 ;  The  Aztecs, 
1870,  3  M.  L.  C.  326 ;  The  Nellie,  1873,  2  Asp.  142 ;  The  Camellia, 
above). 

If,  however,  the  claimant's  effi)rts  do  not  bring  the  ship  into  greater 
comparative  safety,  although  the  ship  is  saved,  no  salvage  is  due  (The 
Udward  Hawkins,  1862,  Lush.  515;  The  Cheerful,  1885,  11  P.  D.  3; 
The  Benlarig,  1888,  14  ibid.  3;  The  Kilmaho,  1900,  16  T.  L.  R.  155). 

On  the  other  hand,  although  the  salvage  service  is  successful,  yet  if 
the  property  salved  is  damaged  or  expense  is  incurred  by  its  owners  in 
consequence  of  mistake,  negligence,  or  non-criminal  misconduct  on  the 


SALVAGE  115 

part  of  the  salvors,  the  amount  of  the  salvage  reward  will  be  reduced 
(The  Atlas,  1862,  Lush.  518;  The  Diike  of  Manchester,  1846,  4  N.C.  580, 
Dr.  Lushington) ;  and  "  wilful  or  criminal  misconduct  may  work  an  entire 
forfeiture  of  salvage,  but  such  a  charge  must  be  proved  by  those  who 
impute  it"  (Sir  John  Coleridge,  The  Atlas,  ante,  p.  528). 

Further,  where  salvors,  after  rescuing  a  ship  from  danger,  bring  her 
by  their  negligence  into  an  equally  dangerous  position,  and  she  suffers 
greater  damage  than  she  would  have  suffered  by  remaining  in  her 
original  position  {The  Duke  of  Manchester,  1846,  4  N.  C.  580 ;  6  Moo, 
P.  C.  91 ;  13  E.  R.  618) ;  or  where  salvors,  after  performing  salvage 
service,  cause  by  their  misconduct  a  loss  to  the  salved  ship  which  is 
probably  equal  to  the  loss  to  which  she  was  originally  exposed  {Tlie  Van 
Yean,  1883,  8  P.  D.  147 ;  but  see  The  Lepanto,  [1892]  P.  122 ;  The  Capella, 
ibid.  70)  no  salvage  is  payable.  Where  services  are  rendered  by  agree- 
ment, if  some  benefit  is  conferred,  an  agreement  to  attempt  to  tow  gives 
right  to  some  remuneration  ( TAe  Benlarig,  1888, 14  P.  D.  3  ;  The  Lepanto, 
[1892]  P.  122;  The  Kilmaho,  1900,  16  T.  L  R.  155;  The  Aztecs,  1870, 
3  M.  L.C.  326;  The  Nellie,  1873,  2  Asp.  142;  The  August  Korff,  [1903] 
P.  166  ;  9  Asp.  428). 

Where,  however,  the  services  of  a  ship  are  engaged  to  stand  by 
another  in  a  storm,  or  get  her  an  anchor  and  chain  from  the  shore,  or 
the  like,  and  that  service  is  rendered,  but  the  salved  ship  is  saved  by 
some  other  cause ;  or  if  after  the  service  is  begun  the  salvors,  though 
willing  and  ready  to  complete  it,  are  discharged  by  the  master  of  the 
salved  ship ;  that  service,  though  thus  made  unproductive  of  benefit,  will 
be  rewarded  if  it  has  involved  expenditure  of  time,  labour,  or  risk  {The 
Urulaunted,  1860,  Lush.  90,  service  prevented  by  act  of  God ;  The  Maiule, 
1876,  3  Asp.  338,  master  of  salved  ship  engaging  another  ship ;  The 
Helvetia,  Shipp.  Gaz.  Summ.  Feb.  28,  1894 ;  The  Cambrian,  1897,  8  Asp. 
263;  The  Maasdam,  1893,  7  Asp.  400).  And  in  The  Melpomene,  Sir 
R.  Phillimore  adopted  as  a  principle  the  proposition  that  "  where  a  vessel 
makes  a  signal  of  distress,  and  another  vessel  goes  out  with  the  bond-fide 
intention  of  assisting  that  distress,  and  as  far  as  she  can,  does  so,  and 
some  accident  occurs  which  prevents  her  services  being  as  effectual  as 
she  intended  them  to  be,  and  no  blame  attaches  to  her,  she  ought  not  to 
go  wholly  unrewarded"  (1873,  L.  R.  4  Ad.  &  Ec.  129);  but  salvage  has 
been  refused  to  a  ship  which,  in  answer  to  a  signal  of  distress,  agreed  to 
tow  and  did  tow  for  a  short  time  and  then  left,  on  the  ground  that  the 
agreement  was  to  tow  to  a  place  of  safety  {The Dart,  1899,  8  Asp.  481, 
Phillimore,  J.). 

In  any  case,  however  (even  under  special  agreement  to  pay  for 
specified  services,  Williams  &  Bruce,  130-132),  some  part  of  the  property 
or  res  to  which  the  services  are  rendered  must  be  saved,  or  no  right 
to  salvage  arises  (see  per  Brett,  M.R.,  The  Renpor,  1883,  8  P.  D.  115). 
Under  special  circumstances,  a  master  may  be  justified  in  agreeing  to 
pay  for  assistance  independently  of  the  final  safety  of  his  ship  {The 
Alfred,  1883,  5  Asp.  214);  but  such  agreement  is  not  a  salvage 
agreement. 

3.  Subjects  of  Salvage. — 

By  the  common  or  original  law  of  the  High  Court  of  Admiralty,  the 
■only  subjects  in  respect  of  the  saving  of  which  salvage  reward  could  be 
•entertained  in  the  Admiralty  Court,  were  ship,  her  apparel  and  cargo, 
including  flotsam,  jetsam,  and  lagan,  and  the  wreck  of  these  and  freight, 
and  the  only  subject  added  by  statute  is  life  salvage  (Lord  Esher,  M.R., 


116  SALVAGE 

The  Gas  Float  l^Oiitton,  No.  2,  [1896]  P.  42,  63).  Till  1821  no  salvage 
could  be  given  by  the  Admiralty  Court  for  services  performed  between 
high  and  low  water-mark,  or  for  life  salvage  (1  &  2  Geo.  iv.  c.  75, 
ss,  8,  31);  and  until  1840  that  Court  could  not  try  claims  arising  within 
the  body  of  a  county  (3  &  4  Vict.  c.  65,  s.  6) ;  and  until  1846  it  could 
only  entertain  such  claims  if  they  related  to  the  salvage  of  a  ship  or 
seagoing  vessel  (9  &  10  Vict.  c.  99,  s.  40). 

The  M.  S.  A.,  1894,  contains  certain  provisions  with  regard  to  salvage, 
which  re-enact  provisions  of  former  statutes — (1)  "Where  services  are 
rendered  wholly  or  in  part  within  British  waters  in  saving  life  (whether 
of  passengers  or  crew.  The  Cairo,  1874,  L.  R.  4  Ad.  &  Ec.  184,  186)  from 
any  British  or  foreign  vessel,  or  elsewhere  in  saving  life  from  any  British 
vessel,  there  shall  be  payable  to  the  salvor  by  the  owner  of  the  vessel, 
cargo,  or  apparel  saved  a  reasonable  amount  of  salvage,  to  be  determined 
in  case  of  dispute  in  manner  hereinafter  mentioned ;  (2)  salvage,  in 
respect  of  the  preservation  of  life,  when  payable  by  the  owners  of  the 
vessel,  shall  be  paid  in  priority  to  all  other  claims  for  salvage  ;  (3)  where 
the  vessel,  cargo,  and  apparel  are  destroyed,  or  the  value  thereof  is 
insufficient  after  payment  of  the  actual  expenses  incurred,  to  pay  the 
amount  of  salvage  payable  in  respect  of  the  preservation  of  life,  the 
Board  of  Trade  may,  in  their  discretion,  award  to  the  salvor  out  of  the 
Mercantile  Marine  Fund  such  sum  as  they  think  fit,  in  whole  or  in  part 
satisfaction  of  any  amount  of  salvage  so  left  unpaid  (s.  544).  Wlien  it 
is  made  to  appear  to  His  Majesty  that  the  Government  of  any  foreign 
country  is  willing  that  salvage  should  be  awarded  by  British  Courts  for 
services  rendered  in  saving  life  from  ships  belonging  to  that  country 
when  the  ship  is  beyond  British  jurisdiction.  His  Majesty  may,  by 
Order  in  Council,  direct  that  the  provisions  of  this  part  of  the  Act  with 
reference  to  salvage  shall,  subject  to  any  conditions  and  qualifications 
contained  in  the  order,  apply,  and  those  provisions  shall  accordingly 
apply  to  these  services  as  if  they  were  rendered  in  saving  life  from  ships 
within  British  jurisdiction  (ss.  545).  The  power  contained  in  this  latter 
section  has  as  yet  only  been  exercised  in  the  case  of  Germany.  No  life 
salvage  is  claimable  from  a  foreign  ship,  unless  such  an  Order  in  Council 
has  been  made,  or  the  services  have  been  performed  partly  or  wholly  in 
British  waters,  i.e.  within  three  miles  of  the  British  coast  {The  Willem  III.^ 
1871,  L.  R.  3  Ad.  &  Ec.  487 ;  The  Pacific,  [1898]  P.  170 ;  Jorgensen  v. 
NeptuTie  Steam  Fishing  Co.,  1902,  4  Sess.  Cas.  (5th)  992). 

No  claim  for  life  salvage  is  maintainable  unless  there  is  property 
saved,  against  which  that  claim  can  be  enforced,  and  such  a  claim  can 
only  be  satisfied  out  of  that  property  {The  Renpor,  1883,  8  P.  D.  115, 
117,  ship  and  cargo  totally  lost).  If  a  ship  to  which  life  salvage  has 
been  rendered  is  sunk  and  afterwards  raised,  and  her  value  when  raised 
is  less  than  the  expense  of  raising  her,  although  her  owners  have 
recovered  her  full  value  in  an  action  against  the  ship  which  sunk  her,^ 
there  is  no  res  liable  to  the  claim  {The  Annie,  1886,  12  P.  D.  50,  51). 
It  is  not  only  the  legal  owner  of  the  res  who  is  liable  for  life  salvage,, 
but  also  any  person  who  has  an  interest  in  it,  e.g.  a  seller  who  is  deliver- 
ing it  to  a  purchaser  in  whom  the  property  in  the  res  is  {Five  Steel 
Barges,  1890,  15  P.  D.  142,  146).  If  the  ship  is  saved  and  the  cargo 
is  lost,  life  salvage  is  recoverable  from  the  shipowner ;  if  the  cargo  is 
saved  and  the  ship  lost,  the  cargo  owner  only  is  liable  for  it  {Cargo 
ex  Sarpedon,  1877,  3  P.  D.  28).  The  liability  of  the  owner  of  the  res 
in  life  salvage  is  limited  to  the  value  of  the  property  salved  {Cargo  ex 


SALVAGE  117 

Schiller,  1877,  2  P.  D.  145,  157,  Baggallay,  L.J.);  and  it  is  immaterial 
whether  the  res  is  "  salved  "  or  not,  for  if  it  survives  the  danger  it  is 
liable  to  life  salvage  (Cargo  ex  Schiller,  above,  specie  saved  by  shipowners' 
agents,  and  not  by  life  salvors). 

The  M.  S.  A.  also  makes  certain  provisions  with  regard  to  salvage 
of  property  in  case  of  wreck,  etc.,  of  vessels  or  ships  within  the  limits 
of  the  United  Kingdom  (i.e.  certainly  within  three  miles  of  the 
shore)  (see  s.  546).  It  has  been  held  that  "wreck"  means  wreck 
of  ship,  boat,  or  cargo  (Palmer  v.  Roitse,  1858,  3  H.  «&  N.  505;  see 
Wreck).  "  Vessel  "  is  defined  to  include  any  ship  or  boat,  or  any  other 
description  of  vessel  used  in  navigation ;  and  "  ship,"  to  include  every 
description  of  vessel  used  in  navigation  not  propelled  by  oars  (M.  S.  A., 
8.  742) ;  and  "  ship "  has  been  held  to  include  "  a  fishing  coble,  not 
entirely  decked  over,  having  two  masts  and  a  rudder,  which  are  remov- 
able, and  being  propellable  by  four  oars,  which  goes  out  well  to  sea, 
and  though  the  oars  are  used  to  get  her  out  of  harbour,  they  are  merely 
auxiliary  to  the  use  of  sails  "  (Ex  parte  Ferguson,  1871,  L.  R.  6  Q.  B. 
280, 290);  and  also  a  hopper  barge,  without  masts  or  sails,  and  not  navi- 
gable without  external  assistance  (The  Mac,  1882,  7  P.  D.  38,  126);  and 
a  barge  navigable  only  on  tidal  waters  (Corhett  v.  Pearce,  [1904]  2  K.  B. 
422) ;  but  not  a  structure  made  of  iron,  boat-shaped,  and  containing  gas 
which,  by  its  own  elasticity,  supplied  day  and  night  for  about  six  weeks 
the  light  raised  above  it  (The  Gas  Float  lV7iitto7i,  No.  2,  [1896]  P.  42; 
and  see  Mayor  of  Southport  v.  Morriss,  [1893]  1  Q.  B.  359).  The  term 
"  owners  "  in  sec.  546  includes  all  persons  interested  in  the  ship  or  boat 
(TJie  Louisa,  1863,  B.  &  L,  59);  and  the  term  "cargo"  includes  all 
merchandise  on  board  a  ship  or  boat,  but  not  the  personal  effects  of  the 
master  or  crew,  or  the  personal  apparel  or  effects  of  passengers  which 
are  in  daily  use  (T)ie  Willem  III.,  1871,  L.  R.  3  Ad.  &  Ec.  487),  nor 
ship's  provisions  ;  but  passengers'  luggage  or  valuables  intrusted  to  the 
custody  of  the  ship  are  perhaps  subjects  of  salvage  (Kennedy,  58). 
Freight  (q.v.)  also  is  the  subject  of  salvage,  whether  this  be  merely  paid 
for  the  conveyance  of  passengers  or  for  the  carriage  of  goods,  and  freight 
may  be  earned  although  the  ship  be  lost  (The  Eastern  Monarch,  1860, 
Lush.  81,  82;  The  Mediria,  1876,  1  P.  D.  272;  2  ibid.  5);  and  if  freight 
be  salved,  it  is  a  fund  which  is  available  for  the  reward  of  life  salvors 
(The  Empor,  1883,  8  P.  D.  115,  117). 

Government  ships  or  stores,  whether  foreign  or  British  (and  this  in- 
cludes Colonial  Goyernmenta  (The  Scotia,  1903, 9  Asp.  485)),  are  not  liable 
to  salvage,  and  no  action  in  rem  will  lie  against  them  (see  post ;  The  Prins 
Frederik,  1820,  2  Dod.  451;  The  Constitution,  1879,  4  P.  D.  39;  The 
Parlcment  Beige,  1880,  5  P.  D.  197),  or  against  private  goods  on  board 
them.  But  in  the  case  of  salvage  services  rendered  to  stores  belonging 
to  the  British  Government  (and  it  may  do  so  in  the  case  of  salvage  to 
its  ships),  the  Admiralty  usually  submits  the  claim  to  the  judgment 
of  the  Admiralty  Court  (The  Marquis  of  Huntly,  1835,  3  Hag.  Adm. 
247) ;  and  foreign  Governments  have  acted  in  the  same  way  as  regards 
their  property  (The  Prins  Frederik,  above).  Whether  this  exemption 
extends  to  private  ships  hired  by  the  Government,  e.g.  transports,  is  not 
clear,  and  they  have  been  arrested  to  answer  a  salvage  claim  (The  Lord 
Nelson,  1809,  Edw.  79,  transport  salved  and  arrested ;  and  so  The 
Marquis  of  Huntly,  above;  The  Bertie,  1886,  6  Asp.  26,  where  no  claim 
was  urged  against  Government  stores  carried  in  a  private  vessel,  the 
salvor  being  a  hired  transport).     But  where  property  exempt  from  arrest 


118  SALVAGE 

for  salvage,  such  as  Crown  property,  is  on  board  a  ship  salved  carried  at 
the  shipowner's  risk,  its  value  can  be  taken  into  account  and  a  salvage 
action  in  personam  lies  against  the  shipowners  {Cargo  ex  Port  Victor, 
[1901]  P.  243 ;  9  Asp.  163,  182 ;  and  see  The  Winkfield,  [1902]  P.  42 ; 
Williams  &  Bruce,  179-181). 

4.  Who  can  he  Salvors. — In  order  to  be  a  salvor,  two  conditions  must 
be  complied  with.  In  the  first  place,  the  salvor  must  have  performed 
the  service  personally  {The  Charlotte,  1848,  3  Rob.  68,  72,  Dr.  Lushing- 
ton).  Thus  a  coastguard  officer  who  sends  off  sailors  to  a  ship  in  distress 
is  not  entitled  to  salvage  {The  Vine,  1825,  2  Hag.  Adm.  1);  nor  are 
officers  or  seamen  of  a  King's  ship  because  their  ship  has  sent  boats, 
stores,  and  men  to  help  in  a  salvage  service  {TJie  Thetis,  1833,  3  Hag. 
Adm.  14,  41,  42,  61). 

There  are  two  exceptions  to  this  rule — {a)  In  the  case  of  those  of 
the  crew  of  a  salving  ship  who  do  not  take  part  in  salvage  services 
rendered  by  their  ship,  but  remain  in  the  salving  ship,  on  the  ground 
that  they  are  associates  in  the  service  {TJie  Sarah  Jane,  1843,  2  Rob. 
W.  110,  115),  unless  the  ship  be  a  King's  ship  or  engaged  in  the  public 
service ;  (b)  in  the  case  of  the  owners  of  a  private  salving  ship,  on  the 
ground  that  their  property  is  employed  in  the  service  {The  Norden,  1844, 

1  Sp.  185),  provided  that  they  can  show  that  their  interest  was,  or  was 
in  risk  of  being,  affected  by  that  employment  {The  Two  FHends,  1844, 

2  Rob.  W.  349 ;  The  Charlotte,  above). 

No  salvage  is  claimable  in  respect  of  any  loss,  damage,  or  risk 
caused  to  a  King's  ship,  her  stores,  tackle,  or  furniture,  or  the  use  of 
any  stores  or  other  articles  belonging  to  His  Majesty,  supplied  in  order 
to  effect  such  service,  or  for  any  other  expense  or  loss  sustained  by  His 
Majesty  by  reason  of  that  service  (M.  S.  A.,  s.  557  (1)) ;  and  a  similar 
rule  applies  with  regard  to  vessels  belonging  to  the  Bombay  Marine 
{The  Dalho^isie,  1875,  1  P.  D.  211n.),  but  not  with  regard  to  vessels 
belonging  to  a  harbour  and  vested  in  the  Board  of  Trade  {The  Cyhele, 
1877,  2  i\  D.  224 ;  3  ibid.  8). 

A  charterer  of  a  ship  is  only  entitled  to  the  salvage  earned  by  her 
employment  in  salvage  services,  if  the  charter-party  expressly  so 
provides,  or  if  the  charter-party  amounts  to  a  demise  of  the  ship,  in 
which  case  he  is  owner  pro  hac  vice  (see  Charter-Paety).  Otherwise 
the  owner  is  entitled  to  the  salvage  earned  by  her  {The  Maria  Jane, 
1850,  14  Jur.  857;  The  Scmtt,  1872,  L.  R.  3  Ad.  &  Ec.  512,  a  demise ; 
The  Collier,  1866,  L.  R.  1  Ad.  &  Ec.  83  ;  not  a  demise).  When  by 
charter-party  a  ship's  salvage  earnings  are  to  be  divided  equally 
between  shipowner  and  charterer,  net  salvage  after  deducting  expenses 
is  meant  {Baker  v.  PocUington  S.  S.  Co.,  [1899]  2  Q.  B.  690 ;  9  Asp. 
22). 

The  owner  or  charterer  may,  however,  be  barred  by  his  legal  relation 
to  the  salved  res  from  claiming  any  salvage  from  it  (see  TheAlfen,  1857, 
Swa.  Ad.  189 ;  The  Waterloo,  1820,  2  Dod.  433).  If  the  salving  ship  is 
owned  by  several  owners,  and  some  of  them  are  interested  in  the  salved 
ship,  the  other  owners  can  claim  salvage  from  the  latter  {The  Glenfruin, 
1885, 10  P.  D.  103).  In  the  case  of  the  salved  res  being  cargo,  the  owner 
of  the  salved  ship,  if  also  owner  of  the  salving  ship,  may  be  unable  to 
claim  salvage  against  it,  if  by  the  terms  of  his  contract  to  carry  that 
cargo  he  is  liable  for  loss  or  injury  to  it,  and  the  salvage  service  was 
only  necessary  in  order  to  prevent  such  loss  or  injury  {The  Glenfruin, 
ante).     If  the  shipowner  is  not  so  liable,  he  can  claim  salvage  in  such  a 


SALVAGE  119 

case  {Cargo  ex  Laertes,  1887,  12  P.  D.  187).  Where  both  salved  and 
salving  ships  belong  to  the  same  owner,  the  crew  of  the  latter  can  claim 
salvage  either  against  the  cargo  {The  Glenfruin,  above)  or  against  the 
ship,  on  the  ground  that  such  a  service  is  outside  the  scope  of  their 
contract  with  the  shipowner  {The  Sappho,  1871,  L.  K.  3  P.  C.  690,  694) ; 
but  such  service  must  be  of  a  substantial  nature,  or  the  Court  will  make 
a  small  award,  or  may  deprive  them  of  costs,  or  make  them  pay  all  costs 
{The  Agamemnon,  1883,  5  Asp.  92). 

Neither  the  owners  nor  the  crew  of  a  salving  ship  can  claim  salvage, 
(1)  where  the  salvage  is  rendered  necessary  by  the  default  of  the  salving 
ship  {The  Altair,  [1897]  P.  105,  tug  and  tow),  even,  it  seems,  if  the 
collision  be  due  to  the  fault  of  a  compulsory  pilot,  or  to  the  fault  of  only 
some  of  the  crew  of  the  salving  ship  {Cargo  ex  Capella,  1867,  L.  E.  1  Ad. 
«&  Ec.  356) ;  but  if  a  ship  be  damaged  by  collision  with  a  wrong-doing 
ship  and  another  ship  salves  her,  not  only  the  crew  of  this  latter  ship, 
but  also  those  of  her  owners  who  are  interested  in  the  wrong-doing  ship 
can  claim  salvage  (2Ae  Glengaber,  1872,  L.  K.  3  Ad.  &  Ec.  534;  1  Asp. 
401).  Nor  can  they  do  so  (2)  where  by  custom  of  trade  or  contract  the 
salving  or  salved  ships  are  bound  to  give  each  other  mutual  help  {The 
Waterloo,  1820,  2  Dod.  433,  436,  custom  of  East  India  trade  set  up  but 
negatived;  ITie  Margaret,  1827,  2  Hag.  Adm.  487i.);  but  for  this  custom 
a  common  enterprise  and  mutuality  must  be  proved  {The  Sivan,  1839, 

1  Rob.  W.  68,  70,  North  whaling  fishery;  The  Zephyr,  1828,  2  Hag. 
Adm.  43,  Honduras  trade). 

In  the  second  place,  a  salvor  must  show  that  his  service  was  volun- 
tary. Thus  under  ordinary  circumstances  the  officers  and  crew  of  a 
ship  cannot  claim  salvage  from  her ;  and  the  M.  S.  A.,  while  allowing 
the  right  to  wages  to  be  independent  of  freight  having  been  earned,  pro- 
vides that  in  all  cases  of  wreck  or  loss  of  the  ship,  proof  that  the  seaman 
has  not  exerted  himself  to  the  utmost  to  save  the  ship,  cargo,  and  stores 
shall  bar  his  right  to  wages  (s.  157).  They  can  only  earn  salvage  from 
the  ship  to  which  they  belong  if  their  contract  of  service  with  her  is 
dissolved  {The  Sappho,  1871,  L.  R  3  P.  C.  690,  694).  This  may  happen 
(a)  by  the  master  discharging  them  (TAc  Warrior,  1862,  Lush.  476); 
{b)  by  the  final  bond-fide  abandonment  of  the  ship  {The  Warrior,  above; 
The  Florence,  1852,  16  Jur.  572),  in  which  case  they  can  claim  for  subse- 
quent services  {The  Le  Jonet,  1872,  L.  K.  3  Ad.  &  Ec.  556) ;  or  (c)  by  the 
hostile  capture  of  the  ship  (doubted  by  Dr.  Lushington,  but  supported 
by  Lord  Stowell),  and  they  can  claim  salvage  for  recapturing  her  from 
the  enemy  {The  Two  Friends,  1799,  1  Kob.  C.  278 ;  The  Beaver,  1801, 
3  ibid.  292),  but  not  for  recovering  her  from  mutineers  {TJie  Governor 
Raffies,  1815,  2  Dod.  17,  18). 

A  pilot  is  not  entitled  to  claim  salvage  for  ordinary  pilotage  services, 
although  their  performance  involves  some  risk;  but  he  may  become 
entitled  to  salvage  by  circumstances  either  existing  at  the  beginning 
of  such  services,  or  supervening  afterwards  (see  Pilots)  {The  Santiago, 
1900,  9  Asp.  147). 

A  tug  under  contract  to  tow  another  ship  may  become  entitled  to 
salvage  reward  if  her  towage  becomes  salvage  {The  Westburn,  1896,  74 
L.  T.  200 ;  8  Asp.  130 ;  The  Stanmore,  1897, 13  T.  L.  R  165 ;  The  Madras, 
1898,  P.  90;  The  Harvest  Home,  1904, 10  Asp.  18);  and  see  Towage. 

A  ship's  agent  has  been  refused  salvage,  or  any  reward  whatever,  for 
arranging  for  assistance  to  be  given  to  a  ship  in  distress  {The  Watt,  1843, 

2  Rob.  W.  70 ;  The  Lively,  1848,  3  ibid.  64);  but  he  has  been  allowed  to 


120  SALVAGE 

claim  it  in  other  cases  although  he  incurred  no  personal  risk,  whether 
his  exertions  are  within  the  scope  of  his  work  as  such  ship's  agent  {The 
Happy  Eeturn,  1828,  2  Hag.  Adm.  198,  207;  The  Favourite,  1844,  2  Rob. 
W.  255 ;  The  Purissima  Concepdon,  1849,  3  iMd.  181)  or  outside  it  {Cargo 
ex  Honor,  1866,  L.  R.  1  Ad.  &  Ec.  87) ;  but  if  an  agent  is  employed  by 
insurers  of  a  ship  to  raise  her  under  an  ordinary  contract  at  common 
law,  for  which  the  remuneration  is  not  to  depend  on  success,  he  cannot 
claim  as  a  salvor  against  her  {The  Solway  Prince,  [1896]  P.  120).  The 
better  view  is  that  an  agent  is  not  precluded  from  claiming  salvage,  and 
if  he  is  asked  to  render  assistance  he  has  a  right  to  some  reward,  even  if 
the  operations  are  unsuccessful ;  but  if  they  are  successful,  the  award 
is  made  on  a  different  basis  than  if  he  had  risked  the  loss  of  his  entire 
expenditure  as  a  salvor  {The  Kate  B.  Jones,  [1892]  P.  366;  and  see  The 
Crusader,  [1907]  P.  196 ;  10  Asp.  442). 

Passengers  are  bound  to  work  for  the  safety  of  the  ship,  so  long  as 
they  stay  on  board  her,  if  a  common  danger  arises,  and  cannot  claim 
salvage  for  such  work  {The  Branston,  1826,  2  Hag.  Adm.  3;  The  Vrede, 
1861,  Lush.  322),  though  they  may,  if  they  like,  escape  and  save  their 
lives.  But  if  they  stay  on  the  vessel  for  the  purpose  of  saving  her,  after 
they  might  escape,  or  if  they  perform  some  extraordinary  service  for  her, 
e.g.  navigate  her  into  safety,  they  can  claim  as  salvors  {Newman  v. 
Walters,  1804,  3  Bos.  &  Pul.  612). 

Public  servants  and  officials,  such  as  officers  and  seamen  of  the  Royal 
Navy,  are  under  an  obligation  to  render  some  service  of  protection  to 
British  ships,  and  lives  and  cargoes  on  board  them,  in  distress  {The 
Charlotte  Wylie,  1846,  2  Rob.  W.  495) ;  and  they  cannot  claim  salvage 
for  anything  which  falls  within  the  scope  of  their  public  duty;  e.g. 
salvage  has  been  refused  them  for  quelling  a  mutiny  in  a  merchant  ship 
{The  Francis  and  Eliza,  1816,  2  Dod.  115);  and  it  has  been  said  that  for 
rescuing  vessels  from  other  than  maritime  dangers  {e.g.  mutiny,  piracy, 
or  hostile  seizure),  in  order  to  obtain  salvage,  they  must  incur  great 
personal  danger  and  use  great  exertions  in  performing  the  service  {ibid. 
Lord  Stowell,  120).  The  same  principle  is  applied  in  cases  of  salvage 
from  maritime  dangers  and  perils  of  the  seas,  and  is  adopted  in  the 
Admiralty  Instructions  (see  Cargo  ex  Ulysses,  1888, 13  P.  D.  205).  Merely 
constructive  assistance  will  not  support  a  claim  for  salvage;  e.g.  an 
admiral  of  a  fleet  or  captain  of  a  ship  cannot  claim  it  by  virtue  of  his 
command  over  ships  or  men  performing  salvage  services ;  and  this  is 
recognised  by  Admiralty  proclamation  (Kennedy,  115);  but  effective 
salvage  by  such  officers  entitles  them  to  claim  it  {The  Thetis,  1833, 3  Hag. 
Adm.  14,  flag-officer  entitled  to  salvage);  and  a  captain  of  a  King's 
ship  allowing  a  transport  chartered  by  Government  to  render  services 
was  held  entitled  to  share  with  officers  and  men  sent  from  his  ship 
in  that  transport  for  salvage  service  {The  Nile,  1875,  L.  R.  4  Ad.  & 
Ec.  449).  Salvage  services  by  men  belonging  to  the  Royal  Navy  are 
remunerated  on  the  same  scale  as  private  salvors  (Kennedy,  112). 

Salvage  by  King's  ships  is  specially  dealt  with  by  the  Merchant 
Shipping  Act.  No  claim  can  be  made  for  any  loss,  damage,  or  risk  to 
the  King's  ship  or  her  equipment,  or  the  use  of  any  stores  or  articles 
belonging  to  the  Crown  supplied  for  those  services,  and  no  claim  by  the 
commander  or  crew  of  a  King's  ship  is  to  be  finally  adjudicated  upon 
except  by  the  consent  of  the  Admiralty,  and  if  such  consent  is  not  proved 
the  claim  stands  dismissed  with  costs.  In  the  case  of  salvage  by  such 
ships  abroad,  a  bond  may  be  executed  by  the  master  of  the  salved  ship 


SALVAGE  121 

in  such  sum  as  the  consular  officer  of  the  port  where  the  ship  is  taken 
thinks  fit  to  meet  the  demand  for  salvage,  which  can  be  enforced  in  the 
High  Court  or  other  Court  agreed  on  by  the  parties.  While  the  other 
salvage  rights  of  such  salvors  are  preserved,  they  have  no  power  to  detain 
the  vessel  or  her  cargo  or  the  salved  property  otherwise  than  as  provided 
by  the  Act  (M.  S.  A.,  ss.  557-564).  An  agreement  as  to  salvage  may 
also  be  made  by  the  master  of  the  salved  ship  to  abide  by  the  decision 
of  a  proper  Court,  which  can  be  enforced  like  a  bond  (s.  554). 

Salvage  may  be  claimed  under  certain  conditions  by  men  of  the 
coastguard  (see  Coastguaed;  and  The  Clifton,  1834,  3  Hag.  Adm.  117, 
121),  and  by  lifeboatmen  {TheMancliester  City,  Shipp.  Gaz.  Summ.  1899,  59, 
and  see  Lifeboat),  and  by  a  tug  towing  a  lifeboat  {Tlie  Auguste  Legembre, 
[1902]  P.  123),  and  by  launchers  of  lifeboats  {Tlie  Cayo  BonUo,  [1904] 
P.  310 ;  9  Asp.  603).  The  onus  of  proof  is  on  a  lifeboat's  crew  going 
to  save  life  to  show  that  they  have  rendered  salvage  services  to  property 
{The  Marguerite  Molinos,  [1903]  P.  160;  9  Asp.  424). 

Receivers  of  wreck  are  not  entitled  to  any  remuneration  beyond 
their  proper  expenses  and  statutory  fees  (s.  567),  which  are  recoverable 
as  salvage  (Williams  and  Bruce,  141, 142),  unless  they  personally  render 
salvage  services  to  life  or  property  outside  the  prescribed  duties 
(Kennedy,  118). 

Magistrates  and  other  public  officials  can  similarly  only  claim  salvage 
if  and  so  far  as  the  service  is  outside  their  official  duty  {The  Aquila, 
1798,  1  Rob.  C.  S7,  The  Furissima  Concepcim,  1849,  3  Rob.  W.  181, 
184). 

5.  Bemedies  of  Salvors. — Prior  to  the  Judicature  Act,  the  Admiralty 
Court  had  exclusive  jurisdiction  in  salvage,  whether  on  the  high  seas  or 
in  tidal  waters ;  and  this  jurisdiction  is  now  vested  in  the  High  Court 
of  Justice  (M.  S.  A.,  s.  565),  and  exercised  by  the  Admiralty  Division. 
The  principle  of  salvage  was  unknown  to  the  common  law ;  and  the 
common-law  Courts  would  probably  only  take  cognisance  of  a  claim  for 
salvage  on  proof  being  given  of  a  contract,  express  or  implied,  by  the 
person  whose  property  was  salved  to  reward  the  salvor,  and  could  only 
reward  the  salvor  on  the  basis  of  a  quantum  meruit  for  the  work  which 
he  had  done.  His  only  remedy  was  to  keep  possession  of  the  property 
salved,  and  the  owner  then  could  not  recover  it  from  him  till  he  had 
paid  or  tendered  him  an  adequate  compensation  for  his  work  (Hartford 
V.  Jones,  1699,  1  Raym.  (Ld.)  393) ;  but  this  lien  was  only  exercisable 
upon  property  the  saving  of  which  constituted  a  salvage  service,  i.e. 
exposed  to  sea  perils,  and  such  compensation  was  refused  in  the  case 
of  a  raft  of  timber  placed  in  a  dock  on  the  bank  of  the  Thames,  which 
floated  owing  to  the  ropes  accidentally  getting  loose  and  being  carried 
away  by  the  tide,  and  which  was  saved  {Nicholson  v.  Chapman,  1793, 
2  Black.  H.  254 ;  3  R.  R.  374 ;  and  cp.  per  Bowen,  L.J.,  Falcke  v.  Scottish 
Imp.  I.  Co.,  1887,  34  Ch.  D.  234,  248).  Questions  of  general  average 
may,  however,  bring  up  questions  of  salvage  in  a  common-law  Court 
{Akcrblom  v.  PHce,  1881,  7  Q.  B.  D.  129 ;  Anderson  v.  Ocean  S.  S.  Co., 
1884,  10  App.  Cas.  107). 

In  the  Admiralty  Division  (to  which  any  salvage  action  begun  in 
another  Division  may  be  transferred — -Judicature  Acts,  1873,  s.  36 ;  1875, 
8.  11 ;  and  Order  49)  the  salvor  can  enforce  his  claim  to  compensation 
by  means  of  arrest  {q.v.),  in  virtue  of  his  maritime  lien  {q.v.,  and  as  to 
ranking  of  maritime  lien  for  salvage,  see  Maritime  Lien),  upon  the  res 
saved;  and  the  Court  therefore  views  with  disfavour  the  salvor  retain- 


122  SALVAGE 

ing  possession  of  the  res  except  in  cases  of  derelict  (q.v.)  (Cossman  v. 
West,  1887,  13  App.  Cas.  181,  P.  C),  and  even  then  not  in  all  cases  {The 
Lady  Worsley,  1855,  2  Sp.  253  and  255) ;  unless  a  surrender  of  the  res 
means  the  loss  of  the  security  for  reward  {The  Glasgow  Packet,  1844, 
2  Kob.  W.  306,  313),  or  under  peculiar  circumstances  {The  Orbona,  1853, 
1  Sp.  161,  165 ;  The  Finnas,  1888,  6  Asp.  313,  314).  For  such  improper 
detention  the  salvor  may  be  deprived  of  costs,  or  get  the  award  reduced, 
or  forfeit  it  altogether  (Kennedy,  9). 

A  salvor  may  proceed  in  Admiralty  either  in  rem  or  in  personam, 
whether  there  is  a  salvage  agreement  or  not  {The  Two  Friends,  1799, 
1  Rob.  C.  271,  284;  Cargo  ex  Schiller,  1877,  2  P.  D.  149);  and  an  action 
in  personam  lies  against  the  owners  of  a  salved  ship,  although  the 
property  in  such  ship  has  been  transferred  to  other  persons  in  whose 
hands  it  is  not  subject  to  a  maritime  lien,  ^.(jr.  Government  {Five  Steel 
Barges,  1890,  15  P.  D.  142,  146).  But  this  right  to  sue  in  personam  is 
only  a  qualified  one,  and  some  property  or  interest  in  property  must  be 
saved  to  which  the  claim  can  attach  in  order  to  found  a  claim  for  salvage 
{Five  Steel  Barges,  above;  Cargo  ex  Sarpedon,  1877,  3  P.  D.  28,  34;  The 
Eejipm%  1883,  8  ibid.  115,  117;  The  Chieftain,  1846,  4  N.  C.  460;  and 
see  The  Dictator,  [1892]  P.  64  and  304).  No  proceeding  in  rem  is 
available  against  the  proceeds  of  salved  property  {The  Optima,  1905, 
10  Asp.  147). 

A  receiver  of  wreck  can  detain  a  ship  to  which  salvage  services  are 
alleged  to  have  been  rendered  pending  production  of  bail  if  she  is 
brought  within  the  territorial  jurisdiction  (M.  S.  A.,  ss.  546,  552 ;  The 
Fulham,  [1898]  P.  206;  [1899]  P.  251 ;  8  Asp.  425,  559). 

In  an  action  for  salvage  by  owners,  master,  and  crew  of  a  foreign  ship, 
who  are  all  out  of  the  jurisdiction,  a  counterclaim  for  demurrage  caused 
by  damage  done  by  the  plaintiff  ship  can  be  raised  {The  Cheapside,  [1904] 
P.  339 ;  9  Asp.  595 ;  and  see  Tender). 

A  summary  trial  of  salvage  disputes  is  provided  by  the  M.  S.  A.,  1894, 
sa.  547-554. 

County  Courts  having  Admiralty  jurisdiction  have  the  same  juris- 
diction in  salvage  under  the  County  Courts  Acts  as  under  the  M.  S.  A. 
In  salvage  causes  where  the  services  are  rendered  within  the  Cinque 
Ports,  the  Cinque  Ports  Salvage  Commissioners  or  Admiralty  Court 
exercise  jurisdiction,  which  is  specially  saved  by  the  M.  S.  A.  (s.  571 ; 
see  Cinque  Ports).  Until  1894  County  Courts  had  not  exclusive  juris- 
diction in  salvage  in  all  cases  up  to  £1000  value  of  res  saved,  or  £300 
claim.  Since  the  M.  S.  A.,  1894,  it  is  not  certain  whether  under  sec.  547 
the  concurrent  jurisdiction  of  the  Admiralty  Division  in  such  cases  is  not 
excluded  (Williams  and  Bruce,  149-151). 

6.  What  are  Salvage  Services. — The  following  examples  illustrate  the 
various  kinds  of  salvage  services : — Towing,  piloting,  or  navigating  into 
safety  a  ship  in  danger  or  distress  {The  Ellora,  1862,  Lush.  550 ;  The 
Anders  Knape,  1879,  4  P.  D.  213 ;  Newman  v.  Walters,  1804,  3  Bos.  & 
Pul.  612);  raising  a  sunk  ship  or  cargo  {The  Catherine,  1848,  6  N.  C. 
Suppl.  xliii. ;  The  Jid)ilce,  1826,  3  Hag.  Adm.  43?i.);  transhipping 
persons  or  cargo  from  a  ship  in  distress  {The  Columbia,  1838,  3  Hag. 
Adm.  428);  getting  a  stranded  ship  afloat  {The  Erato,  1888,  13  P.  D. 
163);  supplying  officers  and  men  to  a  ship  without  a  crew  capable  of 
managing  her  to  navigate  her  {The  Golondrina,  1867,  L.  R.  1  Ad.  &  Ec. 
334 ;  The  Shibladner,  1877,  3  P.  D.  24) ;  furnishing  an  anchor  and  cable 
to  a  ship  which  would  be  in  danger  without  it  {The  Prince  of  Wales, 


SALVAGE  123 

1848,  6  K  C.  39;  The  Favourite,  1844,  2  Eob.  W.  255);  rescuing  ship 
from  peril  of  impending  collision  or  fire  (The  Saratoga,  1861,  Lush.  318 ; 
The  Tees  and  Fentucket,  1862,  ibid.  505) ;  helping  to  extinguish  a  fire 
on  board  a  ship  (The  Rosalie,  1853,  1  Sp.  188);  rescuing  a  ship  from 
pirates  or  mutineers  {The  Cahji^so,  1828,  2  Hag.  Adm.  209 ;  Cargo  ex 
Ulysses,  1888,  13  P.  D.  205;  The  Govemxyr  Raffles,  1815,  2  Dod.  14); 
rescuing  persons  or  cargo  from  a  ship  on  fire  {The  Eastern  Monarch,  1860, 
Lush.  81);  standing  by  a  ship  in  distress  {The  Undaunted,  1860,  ihid. 
92) ;  extricating  a  ship  from  an  ice  field  {The  Swan,  1839, 1  Bob.  W.  68) ; 
buying  a  ship  from  the  enemy  and  bringing  her  home  in  safety  {The 
Henry,  1810,  Edw.  192);  carrying  an  order  from  a  ship  in  distress  for 
help  {The  Mariposa,  [1896]  P.  273);  taking  news  of  position  and  danger 
of  ship  in  want  of  help  {The  Sarah,  1878,  3  P.  D.  39);  and  perhaps 
giving  advice  by  which  a  ship  escapes  a  peril  {The  Eliza,  1862,  Lush. 
536).     (See  Kennedy,  chap,  v.,  and  Williams  and  Bruce,  128,  129). 

7.  Amount  of  Salvage. — The  amount  of  the  award  is  in  the  discretion 
of  the  Court,  unless  it  is  fixed  by  agreement  beforehand  (Lord  Stowell, 
cited  in  The  Thomas  Fielden,  1862,  32  L.  J.  Ad.  62 ;  Dr.  Lushington,  The 
Cuba,  1860,  Lush.  15 ;  Brett,  M.R.,  The  City  of  Chester,  1884, 9  P.  D.  187) ; 
and  the  M.  S.  A.  speaks  of  a  reasonable  amount  of  salvage  being  payable 
(s.  546).  The  limit  in  practice,  where  the  owner  of  the  salved  res 
appears,  is  half  its  value  (Kennedy,  28,  137-139),  certainly  in  cases  of 
non-derelicts,  and  practically  in  derelicts  {q.v.) ;  for  exceptions,  see  The 
Erato,  1888,  13  P.  D.  163,  where  an  award  of  £2000  was  made  on  a 
value  of  £3750.  When  action  goes  by  default,  and  owners  only  appear 
at  trial,  more  than  half  may  be  given  {The  Janet  Court,  [1897]  P.  59, 
on  £7350,  £3000  awarded;  The  ffnlda,  March,  1899,  £370  awarded  on 
£670  value);  and  in  a  case  of  derelict  the  whole  proceeds  of  the  res 
have  been  awarded  {The  Louisa,  [1906]  P.  145 ;  10  Asp.  256 ;  and  see 
Derelict). 

The  Court  is  guided  by  consideration  not  only  of  the  work  and  labour 
of  salvage,  but  also  of  public  interest  and  expediency  (Lord  Stowell,  The 
William  Beckford,  1801,  3  Rob.  C.  355);  and  this  is  illustrated  by  the 
liberality  shown  to  salving  steamers,  especially  steam  tugs  built  and 
maintained  for  salving  purposes  {The  Glengyle,  [1898]  P.  97),  on  the 
ground  of  the  speedy  performance  of  salvage  services  which  is  thus 
secured  (Dr.  Lushington,  The  Ella  Constance,  1864,  33  L.  J.  Ad.  189, 193 ; 
Kennedy,  130, 131),  but  though  professional  salvors  are  regarded  differ- 
ently from  ordinary  ones,  where  the  service  is  not  of  difficulty  or  danger 
they  are  treated  as  the  same  (see  The  Camjpeador,  post) ;  and  by  generous 
awards  made  for  services  rendered  to  steamers  carrying  passengers  ( The 
Werra,  1886,  12  P.  D.  55),  and  to  foreign  ships  which  salve  British 
property  {The  Salacia,  1829,  2  Hag.  Adm.  262). 

There  are,  however,  certain  ingredients  in  a  salvage  service  which 
are  always  material  circumstances  in  the  calculation  of  the  proper  award 
in  a  salvage  cause,  and  the  absence  or  concurrence  of  which  largely 
determine  the  amount  proper  to  be  awarded  {The  Charlotte,  1848,  3  Eob. 
W.  68,  71).  These  are — {a)  The  danger  run  by  the  salvors  as  regards  life, 
and  that  to  which  those  on  board  the  salved  res  were  exposed ;  {b)  the 
value  of  the  res  saved ;  (c)  its  danger ;  {d)  labour,  skill,  and  conduct  of 
salvors ;  {e)  value  and  risk  of  salving  property ;  (/)  losses,  expenses,  and 
responsibilities  of  salvors. 

(a)  and  (6)  Judicial  opinions  are  not  in  accord  as  to  which  of  these 
considerations  comes  first  in  importance ;  and  whether  personal  risk  in 


124  SALVAGE 

the  performance  of  the  service  gives  the  best  title  to  reward  (Lord 
Stowell,  The  William  Beckford,  ante ;  Sir  J.  Nicholl,  The  Clifton,  1834, 
3  Hag.  Adm.  121),  or  the  value  of  the  services  with  reference  to  the 
amount  of  property  saved  from  peril  {The  Fvsilier,  1865,  B.  &  L.  341, 
350,  P.  C),  i.e.  the  value  of  the  property  salved  (Sir  J.  Hannen,  The 
Werra,  1886,  12  P.  D.  52  and  53),  and  Lindley,  M.R.  (then  L.J.).  has 
thus  summed  up  the  chief  considerations  affecting  the  salvage  reward : 
"  The  first  matter  of  consideration  is  the  nature  of  the  services  rendered, 
the  danger  from  which  one  ship  has  been  saved,  and  the  danger  to  which 
the  other  ship  has  been  exposed ;  under  this  head  have  to  be  considered 
the  skill  and  courage  of  the  salvors,  and  the  risk  of  life  and  death  as  weU 
to  the  saved  as  the  rescuers  "  (The  City  of  Chester,  1884,  9  P.  D.  182, 
202).  Danger  to  life,  whether  of  salved  or  salvor,  is  very  highly  con- 
sidered (The  Thonias  Fielden,  ante.  Dr.  Lushington);  and  the  M.  S.  A. 
makes  life  salvage  take  precedence  of  all  other  salvage  claims  (s.  544). 

(b)  Although  the  value  of  the  property  salved  is  important,  where 
the  property  saved  is  large  the  amount  of  the  reward  usually  bears  a 
much  smaller  proportion  to  the  value  of  the  property  than  in  cases 
where  it  is  small  (Kennedy,  140 ;  see  The  Ameriqiie,  1874,  L.  R.  6  P.  C. 
468,  475). 

(c)  The  danger  to  the  property  salved  is  another  consideration ;  and 
circumstances  such  as  the  character  of  the  ship,  and  her  cargo,  crew,  and 
commander,  the  locality,  the  prospect  of  bad  weather  {The  Kenmure 
Castle,  1882,  7  P.  D.  49),  or  of  other  means  of  assistance  {Tlie  Werra, 
above),  all  enter  into  the  calculation.  There  is  also  the  consideration 
that  the  earning  of  the  salvage  award  depends  on  the  services  being 
successful ;  and  consequently  the  existence  of  an  agreement  that  salvors 
shall  be  remunerated  for  their  services  even  if  unsuccessful  is  an  element 
which  reduces  the  award  {The  Edenmore,  [1893]  P.  79). 

{d)  The  labour,  skill,  and  conduct  of  the  salvors  affects  largely  the 
amount  of  the  award ;  and  the  standard  of  the  skill  to  be  expected  from 
them  is  a  varying  one  (see  fcr  Dr.  Lushington,  The  Lockwoods,  1845, 
9  Jur.  1018);  but  the  Court  inclines  to  a  lenient  view  of  salvors'  con- 
duct, e.g.  where  the  unskilfulness  of  salvors  caused  damage  to  the  salved 
property,  but  the  award  was  not  reduced  {The  Cheerful,  1885, 11  P.  D.  3) ; 
and  if  the  award  is  reduced  it  is  not  necessarily  so  to  the  extent  of  the 
loss  occasioned  by  such  want  of  skill  {The  Perla,  1857,  Swa.  Ad.  230). 
Misconduct  or  negligence  of  the  salvors  will  in  extreme  cases  work  a 
forfeiture  of  the  award  (7%g  Magdalen,  1861,  31  L.  J.  M.  C.  22;  The 
Lockwoods,  above ;  Kennedy,  144 ;  see  The  Capdla,  [1892]  P.  70 ;  The  Van 
Yean,  1883,  8  P.  D.  147 ;  M.  S.  A.,  1894,  ss.  511,  518) ;  but  the  burden  of 
proof  lies  on  those  who  allege  such  misconduct  {The  Charles  Adolphe, 
1856,  Swa.  Ad.  156),  or  such  conduct,  where  it  is  not  sufficient  to  justify 
a  forfeiture,  will  reduce  the  award  {The  Glory,  1850,  14  Jur.  678 ;  The 
Dantzic  Packet,  1837,  3  Hag.  Adm.  383,  interfering  with  employment  of 
additional  assistance ;  The  Dwina,  [1892]  P.  58).  For  slight  misconduct 
the  Court  may  deprive  salvors  of  costs  (T^e  Pinnas,  1886,  6  Asp.  313); 
and  in  order  to  affect  the  award  their  misconduct  need  not  cause  actual 
damage  {The  Glory,  above ;  The  Marie,  1882,  7  P.  D.  203,  205).  Where 
actual  damage  is  caused  by  such  misconduct  or  unskilfulness  the  Court 
need  not  reduce  the  award  to  the  full  extent  of  the  damage  {The  Cape 
Packet,  1848,  3  Eob.  W.  125) ;  though  salvors  may  be  made  liable  (in  a 
collision  action)  for  the  full  extent  of  such  damage  {The  Thetis,  1869, 
L.  R.  2  Ad.  &  Ec.  365 ;  The  C.  S.  Butler,  1874,  4  ibid.  178).     The  fact  of 


SALVAGE  125 

the  salvors  making  an  exorbitant  demand  may  reduce  the  amount 
of  the  award  (Lord  Stowell,  The  John  and  Thomas,  1822,  1  Hag. 
Adm.  157n.);  and,  accordingly,  salvors  have  been  ordered  to  pay  the 
costs  of  finding  bail  for  an  excessive  claim  (The  George  Gordon,  1884, 
9  P.  D.  46  ;  The  Marguerite  Molinos,  [1903]  P.  165).  They  have  not  been 
ordered  to  do  so  where  the  amount,  though  more  than  twice  the  sum 
awarded,  is  not  an  unreasonable  security  to  ask  {The  Minerva,  December 
1900,  Barnes,  J.). 

(e)  The  value  of  the  salving  property  is  an  element  to  be  considered 
in  connection  with  the  danger  to  which  it  is  exposed ;  and  this  is  an 
important  consideration  where  the  salvage  is  a  large  and  costly  steamer, 
but  not  where  the  value  of  the  salvor's  property  is  small  {The  Weri'a,  1886, 
12P.  D.  52;  Kennedy,  148). 

(/)  The  time  taken  by  the  salvage  service  is  not  in  itself  an  important 
element  in  assessing  the  reward  {The  Thomas  Fielden,  above;  The  Anda- 
lusia, 1865,  12  L.  T.  584);  but  it  is  compensated  in  so  far  as  it  entails 
loss  or  expense  on  salvors,  e.g.  the  time  taken  in  going  out  to  a  vessel  in 
distress  and  signalling  ( 7'A€  GVac^s,  1844,  2  Rob.  W.  294,  300). 

Any  risk  or  responsibility  other  than  that  of  injury  to  the  salving 
vessel  incurred  by  the  salvor,  is  a  material  element  in  the  reward,  e.g.  the 
risk  a  shipowner  runs  by  deviating,  in  order  to  render  salvage  service,  of 
losing  his  insurance,  or  of  becoming  liable  to  the  owners  of  cargo  on  board 
(see  Deviation),  raises  the  amount  of  award  not  only  for  the  shipowner, 
but  also  for  the  master  on  account  of  his  responsibility  to  his  owner  for 
such  deviation  (see  The  Famley  Hall,  1881,  4  Asp.  499  ;  The  Edenmore, 
[1893]  P.  79  ;  The  Aletheia,  1865,  13  W.  R.  279);  or  the  penalties  which 
a  ship  employed  to  carry  mails  incurs  for  deviation  {The  Martin  Luther, 
1857,  Swa.  Ad.  287 ;  The  Silesia,  1880,  5  P.  D.  177) ;  or  the  dislocation  of 
the  sailing  arrangements  of  the  line  to  which  the  salving  ship  belongs  {The 
Minerva,  Admiralty  Court,  December  1900) ;  or  the  responsibility  of 
the  commander  of  a  King's  ship  in  delaying  his  ship  in  order  to  per- 
form a  salvage  service  {The  Ewell  Grove,  1835,  3  Hag.  Adm.  209,  225, 
226).  Under  the  Merchant  Shipping  Act  (as  already  seen)  "  salvage  " 
includes  all  expenses  properly  incurred  by  the  salvor  in  performing  the 
service  (s.  510  (2)).  It  is  now  the  rule,  established  by  modern  decisions, 
that  the  amount  of  damage,  expense,  or  loss  of  profits  is  not  under 
ordinary  circumstances  to  be  taken  as  a  fixed  figure  which  is  to  be  added 
to  the  amount  of  reward  for  actual  salvage  service,  but  the  fact  of  such 
amount  is  taken  into  consideration  by  the  Court  in  assessing  the  amount 
of  the  award.  The  Court  need  not,  because  the  salvor  proves  such 
damage,  etc.,  fix  the  amount  of  the  award  at  a  figure  high  enough  to 
include  them,  for  either  the  salvage  service  or  the  res  salved  may  be  so 
small  that  it  would  not  be  fair  to  make  the  owner  of  the  res  bear  so 
heavy  a  burden  (see  The  Erato,  1888,  13  P.  D.  163).  If,  however,  the 
services  are  meritorious,  and  the  salvors  have  sufi'ered  heavy  loss,  and 
the  res  salved  is  ample  to  leave  a  substantial  surplus  for  the  owner  of 
the  res,  after  making  good  such  loss  and  giving  an  adequate  reward  for 
salvage  service,  the  salvor  ought  to  receive  a  sum  enough  for  these  two 
purposes;  and  evidence  of  such  loss,  damage,  or  expense  should  be 
received,  either  being  ascertained  by  the  registrar  or  proved  in  Court 
{The  Sunniside,  1883,  8  P.  D.  137 ;  The  Be  Bay,  1883,  8  App.  Cas.  559 ; 
The  City  of  Chester,  1884,  9  P.  D.  182 ;  Kennedy,  156).  The  items  of  a 
salvor's  claim  must  not  be  discussed  in  the  same  detail  as  in  an  action 
for  work  and  labour  done  {The  Pinnas,  1888,  6  Asp.  315);  and  an  award 


126  SALVAGE 

is  generally  made  in  gross,  including  allowance  for  loss  and  expense  as 
well  as  reward  {The  Andrina,  1870,  L.  R.  3  Ad.  &  Ec.  286 ;  The  Erato, 
13  P.  D.  163).  In  some  cases  a  distinction  in  the  award  in  respect  of 
the  salvor's  losses  is  required  (see  The  City  of  Chester,  ante,  204 ;  The 
Sunniside,  ante) ;  and  perhaps  in  order  to  do  justice  to  the  underwriters 
or  ship,  the  amount  of  compensation  intended  to  be  allowed  the  ship  for 
expenses  should  be  separately  stated,  or  the  shipowner  may  be  recouped 
twice  over  for  the  same  expenditure,  though  Butt,  J.,  in  Tlie  Erato,  ante, 
refused  to  take  notice  of  the  fact  of  the  salving  ship  having  been  insured 
for  the  purposes  of  the  salvage  (Kennedy,  160). 

The  Court  may  indemnify  salvors  for  expenses  which  are — (1) 
properly  incurred  in  the  salvage  service  before  the  salved  res  is  placed 
in  safety  {The  Pinnas,  1888,  6  Asp.  313);  or  (2)  directly  caused  by  the 
performance  of  the  salvage  service,  e.g.  damage  to  ship  and  tackle,  or 
to  clothing,  not  due  to  the  fault  of  the  crew  (Kennedy,  160).  In  the 
latter  case  the  Court  presumes  in  the  absence  of  contrary  proof  that  the 
injury  was  not  due  to  the  salvors'  fault  or  negligence  {The  Thomas 
Blyth,  1860,  Lush.  16;  see  The  Be  Bay,  1883,  8  App.  Cas.  559;  The 
Silesia,  1880,  5  P.  D.  177 ;  The  Salacia,  1829,  2  Hag.  Adm.  270 ;  TJie 
Sun7iiside,  ante ;  The  Gladiator,  1864,  Williams  and  Bruce,  154). 

With  regard  to  appeals  as  to  the  amount  of  salvage  reward,  the 
general  rule  is  that  the  award  of  the  Admiralty  Court  cannot  be 
interfered  with  unless  it  is  shown  to  have  misapprehended  the  facts  or 
acted  contrary  to  any  principle,  if  the  amount  does  not  seem  unreason- 
able (Lord  Esher,  M.K.,  The  Star  of  Persia,  1887,  6  Asp.  221);  or 
unless  the  amount  of  the  award  is  so  large  as  to  be  unjust  to  the 
owners  of  the  ship  which  has  been  in  distress,  or  so  small  as  to  be  unjust 
to  the  salvors  (Lord  Esher,  M.R.,  The  Accomac,  [1891]  P.  349,  354; 
and  see  The  Inca,  1858,  12  Moo.  189 ;  The  Amerique,  1874,  L.  R.  6  P.  C. 
468 ;  Tlie  Farnley  Hall,  1881, 4  Asp.  499 ;  The  De  Bay,  ante).  Thus  the 
compensation  awarded  in  the  Court  of  first  instance  for  injuries  done  to 
the  salving  vessel  in  performing  the  services  will  not  be  reduced  on  appeal 
unless  grossly  excessive  (I'/ig  Baku  Standard  v.  The  Angde,  [1901]  A.  C. 
549).  Where  the  appeal  is  only  on  the  amount  of  the  award,  the  Court 
of  Appeal  will  only  interpose  if  it  differs  very  widely  from  the  Court 
below  as  to  what  is  due  to  the  salvors  {The  Clarisse,  1856,  Swa.  Ad.  129, 
134,  P.  C;  The  Carrier  Dove,  1863,  2  Moo.  P.  C.  N.  S.  243,  254;  15 
E.  R.  893;  The  Glengyle,  [1898]  P.  97),  whether  it  thinks  that  the 
amount  should  be  increased  or  diminished  {The  Scindia  and  The  True 
Blue,  1866,  L.  R.  1  P.  C.  241,  250;  The  Chetah,  1868,  2  ibid.  205,  210, 
211);  and  this  must,  generally  at  least,  be  to  the  extent  of  one-third 
{The  Glenduror,  1871,  L.  R.  3  P.  C.  589,  592,  594;  The  Thomas  Allen, 
1886,  6  Asp.  99,  100).  If  the  Admiralty  Court  wrongly  dismisses  a 
salvage  claim,  the  Court  of  Appeal  reversing  that  decision  may,  if  the 
facts  are  before  it,  itself  award  the  salvage  due  {The  Minnehaha,  1861, 
Lush.  335 ;  Kennedy,  167).  As  to  costs  of  such  appeals,  see  The 
Toscana,  [1905]  P.  148;  10  Asp.  108,  modifying  The  Gipsy  Queen, 
[1895]  P.  176,  and  Costs  (Admiralty). 

8.  Apportionment  of  Salvage. — The  duty  of  apportioning  or  determin- 
ing the  share  of  a  salvor  in  a  salvage  award  belongs  properly  to  the 
Admiralty  Court,  and  is  not  the  proper  subject  of  an  action  at  common 
law  {Atkinson  v.  Woodall,  1862,  31  L.  J.  M.  C.  174;  but  see  The 
Gloxinia,  1902,  18  T.  L.  R.  227);  and  it  may  come  before  the  Court 
either  by  an  action  for  distribution  of  salvage  or  in  the  course  of  an 


SALVAGE  I2y 

ordinary  salvage  suit.  (See  M.  S.  A.,  ss.  555,  556,  for  statutory 
provisions.) 

The  following  persons  may  claim  an  apportionment : — Shipowners, 
masters,  officers  and  crew,  passengers,  separate  sets  of  salvors. 

The  shipowner's  share  of  salvage  depends  on  the  character  and 
circumstances  of  the  salvage  services ;  if  it  is  chiefly  due  to  the  ship, 
and  the  ship  is  large  and  valuable,  and  exposed  to  great  risk,  the  ship- 
owner gets  the  largest  share ;  while  if  it  is  chiefly  due  to  the  exertions 
of  the  crew,  and  with  no  risk  to  the  ship,  the  owner's  share  is  small 
{The  Jane,  1831,  2  Hag.  Adm.  338;  and  for  an  example  of  the  latter 
kind,  see  The  Nicolina,  1843,  2  Rob.  W.  175). 

At  the  present  day,  when  salvors  are  generally  steamers,  and  steam 
power  the  chief  factor  in  the  service,  the  owners  of  salving  steamships 
are  entitled  to  a  larger  share  than  formerly  {The  Enchantress,  1860, 
Lush.  93,  96).  Since  1860  and  until  1870,  one-half  was  the  share 
generally  given  by  Dr.  Lushington ;  till  1883  two-thirds,  and  occasion- 
ally three-quarters,  was  generally  given  in  cases  of  towage  by  Sir 
Robert  Phillimore ;  since  1883  three-fourths  has  become  the  ordinary 
share  of  the  shipowners  on  apportionment  (Butt,  J.,  Tlie  City  of  Paris, 
1890,  Kennedy,  172),  though  as  much  as  seven-tenths  have  been  given 
them  {The  Nasviyth,  1886,  10  P.  D.  41,  43 ;  and  see  Kennedy,  172-174). 
Owners  of  fishing  vessels  are  also  favoured  in  apportionment,  on  the 
ground  that  their  business  is  interrupted,  and  the  expense  of  navigating 
such  vessels  is  exceptionally  large  as  regards  mariners'  wages  {The 
Louisa,  1843,  2  Rob.  W.  22,  26). 

The  master  generally  obtains  a  special  apportionment,  but  the 
amount  depends  on  the  extent  of  responsibility  which  he  assumes  in 
rendering  the  service  {The  Howard,  1836,  3  Hag.  Adm.  2567i. ;  TJie 
Martin  Luther,  1857,  Swa.  Ad.  287 ;  The  Castlewood,  1880,  4  Asp.  278). 
A  master  may  be  refused  all  share  in  an  award  {The  Duisbury,  Times, 
March  1901). 

Officers  and  crew  are  usually  given  a  lump  sum,  which  they  divide 
according  to  their  rating ;  but  any  of  them  who  have  rendered  special 
service  may  receive  a  special  reward  (see  The  Golondrina,  1867,  L.  R. 
1  Ad.  k  Ec.  334;  The  Basche,  1873,  4  ibid.  127 ;  The  Skibladner,  1877, 
3  P.  D.  24;  The  Cr&um  Point,  Shipp.  Gaz.  Summ.,  1902,  71).  Appren- 
tices have  been  allowed  to  share  with  seamen  of  the  lowest  rate  {The 
Hope,  1838,  3  Hag.  Adm.  423,  425),  or  have  two-thirds  {T/is  George 
Dean,  1857,  Swa.  Ad.  290,  291),  or  one-half  {The  Beulah,  1842,  1  Rob. 
W.  477)  of  the  share  of  able  seamen,  or  the  full  share  of  able  seamen 
{The  Basche,  above).  The  non-navigating  members  of  a  large  salving 
steamship,  such  as  surgeon,  cooks,  stewards,  etc.,  who  have  taken  no 
active  part  in  the  salvage  service,  have  been  given  only  a  half  share, 
according  to  their  ratings  {The  Spree,  [1893]  P.  147;  The  Dunottar 
Castle,  [1902]  W.  N.  70);  and  the  shares  of  cattlemen  {Tlie  Minneapolis, 
[1902]  P.  30;  9  Asp.  270);  "runners"  {The  Perda,  [1902]  W.  N.  210); 
and  shares  of  navigating  officers  and  engineers  {The  Bremen,  1906,  10 
Asp.  229 ;  The  Italia,  ibid.  284 ;  The  Birnam,  1907,  ibid.  462)  have  been 
similarly  allotted. 

Officers  and  men  of  the  Royal  Navy  share  according  to  the  Naval 
Prize  Proclamation  in  force  at  the  time,  but  the  Admiralty  Court  can 
distribute  among  them,  and  the  proclamation  only  applies  where  there 
has  been  no  apportionment  by  a  competent  Court.  Similarly,  it  can 
apportion  among  coastguards  and  crews  of  revenue  cruisers,  though 


128  SALVAGE 

there  are  Admiralty  rules  governing  their  shares  in  salvage  awards 
(Kennedy,  183). 

A  passenger's  share  of  salvage  depends  on  his  position  and  his 
personal  share  in  the  service ;  thus  he  has  been  given  an  able  seaman's 
share  {The  Hope,  above);  and  a  foreign  master  and  seamen  on  board  a 
salving  ship  have  been  respectively  allowed  a  double  share  and  the 
same  share  as  able  seamen  of  the  ship  {The  Perla,  1857,  Swa.  Ad.  232). 

In  the  case  of  a  private  ship  where  only  part  of  the  crew  are  the 
actual  salvors,  the  rest,  if  willing  to  do  the  salvage  service,  are  entitled 
to  share  in  the  reward  {The  Sarah  Jane,  1843,  2  Rob.  W.  115), 
for  they  are  co-salvors  {ibid.);  but  only  persons  belonging  to  the 
crew  of  the  ship  or  servants  of  the  shipowners  can  so  share  {The 
Coriolanus,  1890,  15  P.  D.  103 ;  The  Minneapolis,  [1902]  P.  30,  cattle 
keepers  in  a  cattle-ship).  But  in  case  of  a  public  ship,  only  those  of 
the  men  who  have  taken  part  in  the  salvage  service  share  in  the  re- 
ward {The  Thetis,  1833,  3  Hag.  Adm.  14,  61 ;  The  Nile,  1875,  L.  E.  4  Ad. 
&  Ec.  449);  and  the  same  rule  applies  to  a  light-ship  {The  Emma,  1850, 
3  Rob.  W.  151). 

Where  there  are  independent  salvors,  i.e.  persons  not  belonging  to 
the  same  ship  or  otherwise  associated  together,  the  Court  apportions 
by  comparing  the  labour,  risk,  and  value  of  each  man's  services  {The 
Nicolaas  Witzen,  1837,  3  Hag.  Adm.  369). 

In  the  case  of  there  being  several  sets  of  salvors  engaged  in  salving 
the  same  res,  where  their  services  are  contemporaneous,  the  proportion 
due  to  each  is  determined  in  the  same  way  as  the  total  amount  of  the 
salvage  award  is  arrived  at  {The  Clarisse,  1856,  Swa.  Ad.  129,  Dr. 
Phillimore;  The  Anna  Helen£i,  1883,  5  Asp.  142);  where  their  services 
are  not  contemporaneous,  first  salvors  are  favoured  if  they  act  meri- 
toriously, but  the  apportionment  is  chiefly  based  on  the  relative  value 
of  the  services  rendered  by  each  set  of  salvors  {The  Jonge  Bastiaan, 
1804,  5  Rob.  C.  322 ;  The  Santipore,  1854,  1  Sp.  Eccl.  &  Adm.  231 ;  The 
Livietta,  1883,  8  P.  D.  24).  If  subsequent  salvors  dispossess  first 
salvors  of  the  salved  ship,  and  the  latter  are  continuously  engaged  at 
the  time  in  salving  her,  and  are  willing  to  persevere  in  doing  so,  the 
Court  only  allows  second  salvors  to  claim  salvage  if  it  is  clearly  proved 
that  the  first  salvors  had  no  reasonable  chance  of  success,  and  the 
interest  of  the  res  absolutely  requires  it  {The  Blenden-Hall,  1814, 1  Dod. 
414).  To  justify  such  interference  there  must  be  an  apparent,  if  not  an 
actual,  necessity  for  it,  owing  to  the  power,  skill,  knowledge,  or  conduct 
of  the  first  salvors  not  being  adequate  or  proper ;  and  second  salvors, 
bond  fide  believing  that  their  interference  is  necessary,  may  share  in  the 
reward  {The  Maria,  1809,  Edw.  A.  R.  175 ;  The  Charlotta,  1831,  2  Hag. 
Adm.  361) ;  and  such  interference  is  also  justifiable  where  the  services 
of  the  first  salvors  are  rendered  not  continuously,  but  intermittently, 
though  violence  in  interference  will  reduce  their  share  {The  Clarisse, 
1856,  Swa,  129).  Where  the  salved  res  is  not  derelict  or  practically 
so,  and  services  of  first  salvors  have  been  accepted,  second  salvors  who 
interfere  get  no  reward,  for  the  owner  of  the  res  or  his  servants  have 
the  right  to  decide  whether  salvage  assistance  shall  be  taken  or  not,  and 
whether  first  salvors  shall  be  superseded  by  others  {The  Fleece,  1850, 
3  Rob.  W.  278,  281).  A  first  salvor  has  no  right  to  insist  on  continuing 
his  services,  for  the  primary  interest  to  be  considered  is  the  safety  of 
the  res.  Where  property  is  derelict  the  first  salvor,  who  has  a  right  of 
exclusive  possession,  must  not  refuse  further  help  if  his  success  seems 


SALVAGE  129 

doubtful ;  where  it  is  not  derelict,  a  first  salvor,  who  persistently  tries 
to  force  his  services  upon  the  owner  of  the  res  after  they  have  been 
dispensed  with,  or  tries  to  exclude  the  aid  of  others  which  the  owner 
thinks  necessary  for  salving  it,  forfeits  all  reward.  If  a  salvor,  whose 
services  have  been  accepted,  can  and  will  complete  the  salvage,  and  is 
dismissed  or  superseded  by  the  owner  or  master  in  favour  of  second 
salvors,  his  title  to  reward  will  be  protected  by  the  Court  {The  Cham- 
pion,  1863,  B.  &  L.  69,  71 ;  The  Maude,  1876,  3  Asp.  338).  Where  the 
interference  of  second  salvors  is  necessary  in  the  interest  of  the  res,  the 
first  salvors,  if  their  efforts  have  been  meritorious,  will  get  due  reward 
(The  Pickwick,  1852, 16  Jur.  669 ;  The  Magdalen,  1861,  31  L.  J.  Ad.  22). 
The  misconduct  of  one  set  of  salvors  does  not  affect  the  right  of  another 
set  to  reward,  unless  the  latter  is  connected  with  that  misconduct  (The 
Neptune,  1842,  1  Rob.  W.  297 ;  Kennedy,  200).  If  a  salvor  dies  before 
salvage  is  awarded,  his  share  goes  to  his  personal  representative  (The 
Marquis  of  HuiUly,  1835,  3  Hag.  Adm.  246 ;  The  Anna  Helena,  1883, 

5  Asp.  142). 

9.  Contrihviion  in  Salvage. — The  general  rule  is  that  all  interests 
(generally  ship,  freight,  and  cargo)  benefited  by  the  salvage  service 
contribute  to  the  reward,  except  wearing  apparel  and  personal  effects 
of  crew  and  passengers  on  board  the  salved  ship,  and  bottomry  and 
respondentia  bonds  (Kennedy,  202).  Ownership  of  property  is  not 
required  to  found  such  a  liability,  for  an  interest  in  the  res  is  enough 
(Five  Steel  Barges,  1890,  15  P.  D.  142,  146). 

The  proportion  due  from  each  part  of  the  salved  res  depends  on  its 
relative  value  to  that  of  the  rest.  The  difference  in  degree  of  risk  from 
which  this  or  that  part  of  the  res  is  salved  does  not  affect  it,  e.g.  specie 
does  not  contribute  on  a  smaller  value,  because  it  will  be  easier  to  recover 
than  the  rest  of  the  cargo  if  the  vessel  had  sunk  (Tlie  Jonge  Bastiaan^ 
1804,  5  Rob.  C.  324 ;  The  Longford,  1881,  6  P.  D.  60).  But  there  may 
be  different  degrees  of  risk  to  the  ship,  cargo,  and  freight,  and  effect 
given  to  this  by  awarding  separately  against  the  ship  and  against  the 
cargo  and  freight  (The  Velox,  [1906]  P.  263;  10  Asp.  277). 

Although  ship,  cargo,  and  freight  are  all  liable  to  the  lien  of  the 
salvor  for  reward,  yet  as  between  shipowner  and  cargo  owner  the  latter 
may  be  exempted  from  contributing,  and  the  shipowner  have  to  pay  the 
whole  salvage,  namely,  (1)  Where  the  cargo  has  not  been  benefited  by  the 
service,  e.g.  where  freight  exceeds  value  of  cargo  (Cox  v.  May,  1815, 4  M. 

6  S.  152) ;  (2)  where  the  necessity  for  the  salvage  service  has  arisen  from 
the  fault  of  the  shipowner  or  his  servants  (The  Ettrick,  1881, 6  P.  D.  127, 
135,  137).  A  cargo  owner,  who  in  such  a  case  has  been  obliged  to  pay 
salvage,  can  recover  the  amount  from  the  shipowner  in  rem  under  the 
Admiralty  Court  Act,  1861,  s.  6  (The  Princess  Boyal,  1870,  L.  R.  3  Ad. 
&  Ec.  41);  but  such  fault  necessitating  salvage  must  be  actionable,  i.e, 
not  covered  by  exceptions  in  the  bills  of  lading  under  which  the  cargo 
is  carried,  in  order  to  bar  the  shipowner's  right  to  contribution  from  the 
cargo.  Otherwise,  if  the  shipowner  pays  the  cargo's  share  he  can  claim 
reimbursement.  If  the  salvage  service  is  necessitated  by  the  fault  of  the 
cargo,  e.g.  catching  fire,  it  seems  that  the  shipowners  can  only  claim  con- 
tribution if  this  is  not  covered  by  the  contract  for  carriage  of  the  cargo 
(Kennedy,  210).  In  practice,  the  shipowner  pays  the  whole  salvage 
in  the  first  instance,  being  protected  by  his  lien  if  he  has  possession  of 
the  cargo,  or  by  taking  security  from  the  cargo  owner.  Each  part, 
however,  of  the  salved  res  is,  strictly,  only  liable  for  the  proportion  of 

VOL.  XIII.  9 


130  SALVAGE 

salvage  properly  falling  on  that  part;  and  the  Court  can  only  award 
salvage  against  the  res  which  is  before  the  Court  {Tlie  Mary  Pleasants, 
1857,  Swa.  Ad.  224 ;  The  Pyremue,  1863,  B.  &  L.  189 ;  The  Raisby,  1885, 
10  P.  D.  114);  but  if  the  salvors  and  shipmaster  agree  to  a  definite  sum 
as  reward,  the  shipowner's  liability  is  pledged  for  the  whole  salvage, 
whether  the  salvors  sue  him  in  personam  or  in  rem,  cargo's  as  well  as  ship's 
{The  Cumbrian,  1887,  6  Asp.  151 ;  The  King  Heinrich,  1888, 13  P.  D.  31). 
Where  all  the  interests  are  not  before  the  Court,  one  cannot  be  made 
liable  for  the  salvage  due  on  another,  but  cargo  owners  out  of  the  juris- 
diction can  be  brought  in  as  proper  parties  to  the  action  under  Order  11 
{The  Elton,  [1891]  P.  265, 270, 271),  but  it  has  been  intimated  that  if  the 
cargo  in  such  a  case  is  being  carried  at  the  ship's  risk  its  value  may  be 
added  to  that  of  the  ship  which  is  before  the  Court  (Barnes,  J.,  and  see 
Williams  and  Bruce,  178,  179). 

The  value  of  the  salved  res,  for  salving  purposes,  is,  strictly,  its  value 
at  the  place  where  the  salvage  service  ends  {The  George  Dean,  1857, 
Swa.  Ad.  290 ;  The  Hohenzollern,  below) ;  but,  "  in  most  cases  the  value 
of  the  property  salved  is  agreed  upon ;  if  it  is  not,  the  exact  value  is  not 
important,  and  the  usual  practice  is  to  assess  the  value  at  the  termination 
of  the  voyage,  the  port  of  arrest"  (Dr.  Lushington,  The  Norma,  1860, 
Lush.  124 ;  The  Stella,  1867,  L.  R.  1  Ad.  &  Ec.  340,  "  value  "  of  res  in  the 
section  of  the  former  M.  S.  A.  corresponding  to  sec.  547  of  1894  Act, 
meaning  "value  when  first  brought  into  safety").  The  value  must 
either  be  agreed  or  an  affidavit  of  value  must  be  filed  before  the  res 
is  released,  unless  the  Court  or  a  judge  otherwise  order  (Order  29,  r.  5). 
In  the  absence  of  agreement,  if  the  plaintiffs  dispute  the  correctness  of 
the  defendants'  affidavit  of  value,  they  must  apply  for  an  appraisement, 
{q.v.),  and  this  is  conclusive  of  the  value  {Cargo  ex  Venus,  1866,  L.  R. 
1  Ad.  &  Ec.  50 ;  Tlie  Hohenzollern,  [1906]  P.  339;  10  Asp.  296,  and  see 
Appraisement);  and  if  the  defendants  do  not  object  to  the  appraise- 
ment, the  fact  that  the  sum  realised  by  the  salved  res  being  afterwards 
sold  is  much  less  than  the  appraised  value  is  not  per  se  enough  indication 
that  the  appraised  value  did  not  fairly  represent  the  value  of  the  res,  at 
the  time  and  place  where  it  is  brought  into  safety,  to  make  the  Court 
vary  a  decree  which  it  has  made  on  the  appraised  value  {The  Georg, 
[1894]  P.  330).  In  assessing  the  value,  the  fact  of  a  sum  of  money 
having  been  paid  to  other  salvors  out  of  the  same  res  by  another  Court 
is  taken  into  consideration  {The  Antelope,  1873,  L.  E.  4  Ad.  &  Ec.  33). 
If  cargo  is  arrested  for  freight,  it  will  only  be  released  by  filing  an 
affidavit  as  to  value  of  freight,  or  paying  the  amount  of  freight  into  the 
registry,  or  satisfying  the  judge  that  it  has  been  paid  (Order  29,  r.  4), 

In  fixing  the  value  of  the  ship,  only  such  charges  and  expenses  may 
be  deducted  from  it  by  the  owners  as  are  subsequent  to  the  beginning 
of  the  salvor's  interest,  and  are  beneficial  to  that  interest  (see  The  Selina, 
1842,  2  K  C.  18 ;  The  Watt,  1843,  2  Rob.  W.  71 ;  but  see  The  Hebe,  1849, 
7  N.  C.  Suppl.  i.  iii. ;  The  Selina,  above ;  The  Fleece,  1850,  3  Rob.  W.  281). 
But  where  a  ship  which  has  received  salvage  services  by  towage,  and  the 
towing  ship  (a  trawler)  brought  her  off  harbour  but  declined  to  take  her 
into  harbour,  and  a  tug  was  signalled  for  and  came  but  the  tow  would  not 
accept  her  services,  and  was  afterwards  driven  ashore  and  suffered  a  large 
depreciation  of  value,  the  towing  vessel  was  held  entitled  to  salvage  on 
the  basis  of  the  value  of  the  tow  at  the  time  that  the  tug's  services  were 
available  {The  Germanic,  [1904]  P.  131 ;  9  Asp.  538). 

In  fixing  the  value  of  the  cargo,  the  proper  and  usual  expenses  of 


SALVAGE  131 

unloading,  storing,  and  selling  goods  are  deducted,  e.g.  custom-house 
charges,  weighing,  brokerage,  and  commission  {The  Fecvce,  1856,  Swa. 
Ad.  116);  and  trade  discount  on  sale  (ibid.),  but  not  a  gratuity  to 
master  (ibid.)  or  primage  insurance  or  freight  (The  Charlotte  Wylie, 
1846,  2  Rob,  W.  497 ;  The  Fleece,  above),  for  the  freight  at  risk  unless 
assessed  separately  is  included  in  the  value  of  the  cargo  (ibid.).  Where 
the  salvage  ends  at  a  port  of  refuge  and  there  is  no  market  for  the  cargo 
there,  and  the  cargo  is  sent  on  to  its  destination  and  sold  there,  a  per- 
centage, freight,  and  other  charges  of  carrying  on,  but  allowing  pro  rata 
freight  to  port  of  refuge,  are  deducted  from  the  sale  price  at  the  destina- 
tion (The  George  Dean,  1857,  Swab.  291).  Where  the  cargo  is  not 
carried  on  in  such  a  case,  its  value  at  the  nearest  market,  less  transport 
thither  and  expenses  of  marketing  it,  is  the  basis  of  value  (Kennedy, 
216).  If  an  owner  of  cargo,  by  miscalculation,  has  had  to  contribute 
on  the  value  of  it  without  deducting  the  freight  due  on  delivery,  and 
freight  has  been  separately  assessed  at  too  low  a  figure,  the  Court  may 
remodel  its  decree  and  reduce  the  amount  of  salvage  payable  (The 
James  Armstrong,  1875,  3  Asp.  46). 

In  fixing  the  value  of  freight,  if  the  cargo  is  brought  by  the  salvor 
to  its  destination,  the  whole  net  freight  is  taken  as  the  value  for  con- 
tribution ;  if  the  cargo  is  not  brought  to  its  destination  by  the  salvor, 
but  to  an  intermediate  port,  and  afterwards  is  not  carried  on  to  its 
destination,  no  freight  is  payable  unless  the  cargo  owner  prevents  the  ship- 
owner from  carrying  it  on,  or  prefers  to  take  delivery  where  it  is.  In  the 
fii*st  case  the  whole  freight  (Cargo  ex  Galam,  1863,  33  L.  J.  Ad.  97)  is 
due ;  in  the  second  the  whole  or  a  /?ro  rata  freight  is  due  according  to 
the  new  agreement  (Kennedy,  218).  Where  the  cargo  is  carried  on  to 
its  destination  from  the  intermediate  port  where  the  salvage  service 
ended,  the  salvor  is  entitled  (by  the  Admiralty  equitable  doctrine)  to 
salvage  upon  the  value  of  the  freight  calculated  at  that  intermediate 
port,  though,  as  between  shipowner  and  sliipper,  no  freight  is  due 
there  (Tlie  Norma,  1860,  Lush.  127).  The  freight  is  calculated  pro 
rata,  but  the  expenses  involved  in  the  further  transit  are  also  taken 
into  account  (TJie  James  Armstrong,  above). 

If  a  salved  ship  is  derelict,  no  freight  is  payable  by  the  shippers 
(see  The  Cito,  1881,  7  P.  D.  5  ;  The  Amo,  1895,  8  Asp.  5  ;  The  Argonaut, 
1884,  Kennedy,  222). 

10.  Agreement  as  to  Salvage. — Instead  of  leaving  the  amount  of  salvage, 
or  its  apportionment,  to  be  decided  by  the  Court,  the  salvors  and  salved 
may  decide  these  questions  by  agreement  between  themselves. 

An  agreement  as  to  the  amount  of  salvage,  properly  speaking,  is  an 
agreement  which  fixes  the  amount  to  be  paid  to  the  salvor,  but  still 
leaves  the  right  to  any  payment  contingent  upon  the  preservation  of 
some  part  of  the  property  in  peril ;  it  does  not  alter  the  character  of 
the  service  or  the  reward  (Kennedy,  225 ;  see,  too,  Hie  Hestia,  [1895] 
P.  193).  Such  an  agreement  must  be  strictly  proved ;  and  though  it 
need  not  be  in  writing,  it  must  be  clear  and  explicit,  and  state  the 
services  to  be  rendered  and  the  sum  payable  for  them  (The  Graces, 
1844,  2  Rob.  W.  294;  The  Arthur,  1862,  6  L.  T.  556,  557;  The 
Cumbrian,  1887,  6  Asp.  151),  and  an  agreement  to  refer  to  arbitration 
does  not  exclude  the  Court's  jurisdiction  (La  Furissima  Concepcion, 
1849,  13  Jur.  545).  The  agreement,  if  proved,  is  primd  facie  good, 
and  the  burden  lies  on  the  person  trying  to  set  it  aside  (The  Helen  and 
•George,  1858,  Swa.  Ad.  369 ;  The  Medina,  1876,  2  P.  D.  5  and  7). 


132  SALVAGE 

Such  an  agreement,  however,  will  not  be  allowed  by  the  Court  to 
stand  if,  firstly,  it  was  obtained  by  fraud  (The  Cms.  V.,  1862,  Lush. 
583 ;  The  Generous,  1868,  L.  E.  2  Ad.  &  Ec.  57) ;  or,  secondly,  by 
misstatement  or  non-disclosure,  though  not  fraudulent,  of  a  material 
fact,  a  material  fact  being  one  affecting  or  being  likely  to  affect  the 
danger  of  the  res,  or  the  risk,  difficulty,  or  duration  of  the  service  (The 
Jonge  Andries,  1857,  Swa.  Ad.  226  ;  The  Canova,  1866,  L.  E.  1  Ad.  & 
Ec.  56 ;  The  Henry,  1851,  15  Jur.  183).  Thirdly,  such  an  agreement 
must  not  be  inequitable,  either  for  inadequacy  or  exorbitancy. 

In  deciding  this  last  point  the  Court  looks  not  only  to  whether  in 
its  opinion  the  amount  agreed  upon  is  too  much  or  too  little,  but  to 
"  the  position  of  the  parties  "  (Butt,  J.,  The  Mark  Lane,  1890,  15  P.  D. 
135) ;  and  if  there  was  practical  compulsion  on  one  of  the  parties  when 
making  the  agreement,  the  presumption  of  fairness  which  an  agreement 
primd  facie  carries  is  destroyed,  and  the  Court  will  refuse  to  uphold  the 
agreement  (The  Medina,  1876,  2  P.  D.  5,  7,  Brett,  L,J.;  The  Rialto, 
[1891]  P.  175,  Butt,  J. ;  The  Port  Caledonia  v.  The  Anna,  [1903]  P.  184; 
9  Asp.  479). 

The  same  holds  good  of  professional  salvors,  where  the  service  is  not 
of  difficulty  or  danger ;  and  an  agreement  under  practical  compulsion 
made  with  professional  salvors  of  a  ship  value  £15,000,  and  her  cargo 
value  £17,000,  for  a  salvage  award  of  £4000  for  the  ship  and  30  per 
cent,  on  the  value  of  the  cargo,  was  held  inequitable,  and  the  Court 
awarded  £6500  (The  Campeador,  Dec.  1900,  Barnes,  J.). 

Practical  compulsion  is  not,  however,  it  seems,  essential,  though 
there  are  judicial  expressions  pointing  that  way  (Williams  and  Bruce,. 
163) ;  but  the  mere  fact  of  the  contract  being  exorbitant  justifies  the 
Court  in  setting  it  aside  (Kennedy,  231  et  seq.,  quoting  Dr.  Lushington 
in  The  Henry,  above,  and  27ie  Helen  and  George,  above ;  Brett,  L.J.,  in 
Akerblom  v.  Price,  1880,  7  Q.  B.  D.  129 ;  and  Baggallay,  L.J.,  in  Cargo 
ex  Woosung,  1876,  1  P.  D.  270,  where  it  was  intimated  that  the  captain 
of  a  King's  ship  had  no  right  to  enter  into  a  salvage  agreement  at  all). 
Equally,  a  salvage  agreement  will  be  set  aside  for  inadequacy  (The- 
Phantom,  1866,  L.  E.  1  Ad.  &  Ec.  58).  The  Court,  however,  will  not 
set  aside  an  agreement  merely  because,  as  things  have  turned  out,  either 
party  might  have  made  a  more  prudent  bargain,  or  because  but  for  the 
agreement  the  Court  would  have  awarded  the  salvors  a  larger  or  smaller 
amount  (The  Mulgrave,  1827,  2  Hag.  Adm.  78  ;  The  Catherine,  1848,. 
6  K  C.  Suppl.  xHii.,  li.,  lii. ;  The  True  Blue,  1843,  2  Eob.  W.  180  ;  The 
Waverley,  1871,  L.  E.  3  Ad.  &  Ec.  369 ;  Kennedy,  241-243). 

Just  as  the  Court  will  disregard  an  agreement  made  before  services 
are  begun,  so  it  will  not  hold  a  salvor  bound  by  a  settlement  after 
services  done,  if  the  payment  is  very  inadequate  (The  Silver  Bullion,. 
1854,  2  Sp.  Eccl.  &  Adm.  70). 

Lastly,  a  salvage  agreement  may  be  cancelled  by  mutual  consent 
(The  Repulse,  1845,  2  Eob.  W.  397),  either  express  (The  Africa,  1854, 
1  Sp.  Eccl.  &  Adm.  299)  or  implied  from  the  acts  of  the  parties  (The 
Samuel,  1851,  15  Jur.  410);  but  the  burden  of  proof  is  on  the  person 
alleging  such  cancellation  (The  Betsy,  1843,  2  Eob.  W.  172). 

Further,  a  salvage  agreement  may  be  superseded  by  supervening 
circumstances  which  make  the  agreed  service  impossible,  and  by  salvage 
service  being  rendered  which  is  of  a  different  nature  and  grade  and 
deserves  a  larger  reward;  and  the  salvors  will  not  be  bound  by  the- 
agi-eement  (The  Westlourne,  1889,  14  P.  D.  132). 


SALVAGE  133 

From  the  nature  of  the  case  a  salvage  agreement  is  generally  made 
by  the  master  of  the  salved  and  salving  ships.  The  master  of  the  salved 
ship  can  bind  his  owners  by  such  an  agreement,  by  virtue  of  his  implied 
authority  to  conduct  the  navigation  of  the  ship  to  a  safe  conclusion 
(Anderson  v.  Ocean  S.S.  Co.,  1884,  10  App.  Cas.  107,  116,  Lord  Black- 
burn; for  instances  see  The  Africa,  1854,  1  Sp.  Eccl.  &  Adm.  300; 
The  Henry,  1851,  15  Jur.  183 ;  and  The  Waverley,  L.  E.  3  Ad.  &  Eccl. 
369),  unless  in  the  circumstances  of  the  case  such  agreement  was  not 
reasonably  necessary ;  or  from  its  terms  it  could  not  be  for  the  owner's 
benefit  {The  Renpar,  1883,  8  P.  D.  118,  Brett,  M.R.;  The  Mariposa, 
[1896]  P.  273) ;  or  the  owner  is  at  hand  and  does  not  authorise  the 
master  to  make  an  agreement  (The  Elise,  1859,  Swa.  Ad.  440).  Only  a 
person  at  the  time  in  charge  of  the  ship  has  this  authority,  and  any 
other  person  alleging  such  authority  must  prove  it,  though  it  may  be 
inferred  from  the  circumstances  {The  Cms.  V.,  1862,  Lush.  583,  master 
of  a  ship  upon  a  foreign  coast  delegating  his  authority  to  the  vice-consul 
of  his  country).  A  master  cannot  agree  to  refer  to  arbitration,  e.g.  by 
Lloyd's  Salvage  Agreement  {The  City  of  Calcutta,  1898,  8  Asp.  442). 
An  agreement  made  by  him  must  be  equitable  {The  KiimaJw,  1900, 
16  T.  L  R.  155).  Under  a  salvage  agreement  fixing  the  amount  of 
reward,  the  owner  of  the  salved  ship  is  liable  personally  for  the  whole 
of  the  agreed  reward  {The  Cumbrian,  1887,  6  Asp.  151 ;  The  Prim 
Henrich,  1888,  13  P.  D.  31),  and  not  merely  for  the  proportion  of  it 
which  the  value  of  ship  and  freight  bears  to  that  of  the  cargo,  as  he 
would  be  where  no  agreement  is  made,  or  an  agreement  is  made  which 
does  not  fix  the  amount  of  the  reward  {The  Raishy,  1885,  10  P.  D. 
114,  ante).  The  owners  of  cargo  on  board  the  salved  ship  are  not 
bound  by  a  salvage  agreement  made  by  the  master ;  and  if  shipowners 
have  paid  the  salvors  an  agreed  sum  and  then  try  to  recover  the  cargo's 
proportion  of  it  as  a  general  average  contribution,  the  cargo  owners  may 
dispute  the  reasonableness  of  such  payment,  and  need  only  contribute 
on  the  basis  of  what  is  a  reasonable  sum  for  them  to  pay  {Anderson  v. 
Ocean  S.  S.  Co.,  1884,  10  App.  Cas.  107,  117).  Where  there  are  several 
independent  salvors  or  sets  of  salvors,  an  agreement  made  by  the 
master  of  the  salved  ship  with  one  of  them  will  only  bind  the  others 
if  they  concur  in  it  or  ratify  it  {Tfie  Clmrlotte,  1848,  3  Rob.  W.  68,  74). 

As  regards  the  salving  ship,  the  master  has  usually  implied  authority 
to  bind  his  owners  by  the  agreement  which  he  makes  {The  Africa,  ante  ; 
The  Britain,  1839,  1  Rob.  W.  40,  43),  unless  his  owner  is  at  hand,  and 
does  not  give  him  authority  {The  Elise,  ante).  His  authority  to  bind  the 
crew  thereby  has  been  recognised  in  cases  where  the  agreement  was  made 
before  the  services  were  rendered  {The  Elise,  1859,  Swa.  Ad.  436-440; 
The  Nasmyth,  1885,  10  P.  D.  41),  and  has  been  denied  in  cases  where  the 
agreement  was  made  after  the  services  {The  Britain,  above  ;  The  Sarah 
Jane,  1843,  2  Rob.  W.  110,  118;  The  Inchmaree,  1899,  P.  Ill;  8  Asp. 
486) ;  and  Kennedy  upholds  the  reasonableness  of  this  distinction,  and 
would  make  it  apply  to  the  owner  equally  with  the  master  (252),  and  so 
Jeune,  P.  {The  Friesland,  [1904]  P.  351). 

Where  ships'  agents  on  being  informed  by  the  master  of  a  ship 
that  she  had  got  aground  and  that  he  required  a  powerful  tug  which 
might  be  hired  on  the  "  no  cure  no  pay  "  principle,  found  it  impossible 
to  hire  a  tug  on  those  terms  and  hired  a  Government  tug  at  a  certain 
rate  per  day  at  their  personal  risk,  also  insuring  the  tug,  and  the  master 
declined  the  services  of  the  tug  on  those  terms  and  signed  an  agreement 


184  SALVAGE 

with  the  ships'  agents  to  pay  them  £4000  if  the  ship  could  be  got  off,  and 
the  ship  was  successfully  floated  in  a  day's  towage,  it  was  held  that  the 
substituted  agreement  was  invalid  and  could  not  be  supported,  and 
the  plaintiffs  were  acting  as  agents  for  the  ship  and  could  only  recover 
their  disbursements  for  the  ship  {The  Crusader,  [1907]  P.  196). 

An  agreement  between  two  shipowning  associations  in  which  fishing 
vessels  are  insured  that  the  amount  of  remuneration  payable  for  salvage 
services  rendered  by  one  of  the  insured  vessels  to  another  shall  be 
settled  by  a  committee  of  the  two  associations  is  not  binding  on  the 
master  and  crew  of  the  salving  vessel,  who  have  not  been  parties 
thereto,  as  being  against  public  policy  under  the  Merchant  Shipping 
Act,  1894 ;  but  the  opinion  was  thrown  out  that  the  owners  might  have 
authority  under  unforeseen  circumstances  to  bind  the  master  and  crew 
for  salvage  by  agreement,  just  as  a  master  can  bind  shipowners  under 
certain  circumstances  (The  Margery,  [1902]  P.  157 ;  9  Asp.  304,  jpn* 
Jeune,  P.).  A  towage  contract  made  between  different  shipowners  for 
the  ship  of  one  to  tow  a  ship  of  the  other  which  was  disabled  does  not 
afifect  the  independent  rights  of  the  master  and  crew  to  salvage  (The 
Friedand,  [1904]  P.  345 ;  10  Asp.  9). 

Agreements  between  the  salvors  for  the  apportionment  or  division  of 
the  salvage  reward  may  be  made  before  the  service  is  rendered  {The 
James  Armstrong,  1875,  3  Asp.  46 ;  The  Sunnidde,  1883,  8  P.  D.  137),  or 
after  it  {The  Afrika,  1880,  5  P.  D.  192).  Such  agreements,  if  made 
honestly  and  by  parties  in  an  independent  position,  are  upheld  by  the 
Court;  and  correlatively,  if  they  are  for  any  reason  inequitable,  or 
db  fortiori  if  they  are  obtained  fraudulently  or  improperly,  are  disregarded 
{The  Enchantress,  1860,  Lush.  93 ;  The  Afrika,  above,  at  p.  196).  The 
Court  will  not,  however,  set  them  aside  merely  because  it  would  have 
apportioned  its  award  differently  {ibid.).  The  interests  of  seamen  are 
safeguarded  in  this  respect  by  the  Admiralty  Court,  which  sets  aside 
such  agreements  if  inequitable  {The  Beulah,  1842,  1  Bob.  W.  477;  The 
Louisa,  1843,  2  ihid.  22). 

There  are  the  following  statutory  restrictions  in  the  Merchant  Ship- 
ping Act  on  abandonment  by  seamen  of  salvage  claims  :  Every  stipulation 
by  which  a  seaman  consents  to  abandon  any  right  in  the  nature  of  salvage 
is  wholly  inoperative  except  in  the  case  of  a  stipulation  made  by  seamen 
belonging  to  a  ship  which  according  to  the  terms  of  the  agreement  is  to  be 
employed  in  salvage  service  with  respect  to  the  remuneration  to  be  paid 
to  them  for  salvage  services  rendered  by  such  ship  to  any  other  (s.  156) ; 
and  an  assignment  or  sale  of  salvage  by  a  seaman  or  apprentice  is  in- 
valid (s.  212) ;  see  the  following  cases : — TheBosario,  1876,  2  P.  D.  41;  The 
Afrika,  1880,  5  P.  D.  192 ;  The  Ganges,  1869,  L.  E.  2  Ad.  &  Ec.  370,  374 ; 
The  Wilhelm  Tell,  [1892]  P.  337 ;  The  Pride  of  Canada,  1863,  B.  &  L. 
208 ;  The  John,  1846,  Kennedy,  257-262  ;  The  Sarah,  1878,  2  P.  D.  39. 

11.  Military  Salvage. — Military  salvage  is  a  question  really  belonging 
to  the  law  of  prize.  It  is  the  reward  paid  for  rescuing  maritime  property 
from  an  enemy,  and  its  amount  depends  on  the  Prize  Act  in  force  at  the 
time  of  the  capture.  This  is  dealt  with  under  PiiizE  (or  Prize  of  War), 
and  the  following  additional  points  may  be  noted. 

Besides  the  ship  and  cargo,  freight  also,  if  earned,  is  included  in  the 
value  subject  to  the  salvage  claim.  If  the  vessel  be  cut  out  of  port 
before  beginning  her  voyage,  and  afterwards  be  recaptured,  no  freight  is 
earned ;  but  if  it  is  in  course  of  being  earned  at  the  time  of  capture,  and 
the  voyage  is  completed  afterwards,  the  Court  will  award  salvage  on  the 


SANCTUAEY  ISh 

freight  for  whole  voyage,  and  not  merely  on  pro  rata  freight  (The  Dorothy 
Foster,  1805,  6  Rob.  C.  88 ;  The  Progress,  1810,  Edw.  210,  213). 

Military  salvage  may  be  awarded,  as  well  as  civil,  to  a  King's  ship 
recapturing  a  vessel  from  the  enemy,  and  rendering  help  to  her  in 
distress  {The  Louisa,  1813,  1  Dod.  317).  It  is  not  given  if  the  ship 
rescued  is  a  hired  Government  transport,  employed  in  the  same  expedi- 
tion as  the  captor  {The  Belle,  1809,  Edw.  66);  nor  for  retaking  the 
property  of  a  neutral  from  the  enemy,  by  whom  it  had  been  captured, 
and  bringing  it  to  this  country,  unless  there  appears  to  be  any  ground 
on  which  it  would  have  been  condemned  in  the  enemy's  Courts  {The 
Huntress,  1805,  6  Rob.  C.  104;  The  Robert  Hale,  1810,  Edw.  265);  nor 
for  preventing  a  British  cargo  being  carried  into  an  enemy's  port  for  the 
preservation  of  the  ship  {Tlie  Franklin,  1801, 4  Rob.  C.  147).  In  military 
salvage  the  principle  of  constructive  assistance  is  recognised  {The  Thetis, 
1833,  3  Hag.  Adm.  14,  58) ;  but  some  assistance  must  be  proved  in 
order  to  share  in  the  reward  {The  Sparkler,  1813,  1  Dod.  359,  ship  in 
sight  at  capture,  or  pursuing;  The  Wanstead,  1810,  Edw.  268).  A  ship 
which  is  in  the  legal  and  constructive,  though  not  actual,  possession  of 
the  enemy  is  liable  to  pay  such  salvage  {The  Pensamento  Feliz,  1809, 
Edw.  115). 

A  British  army,  acting  in  a  foreign  country  in  conjunction  with 
a  native  force,  without  the  co-operation  of  a  fleet,  and  liberating  a  port 
of  that  country  from  the  hands  of  the  common  enemy  by  operations 
directed  to  that  end  near  such  place,  is  entitled  to  salvage  on  ships  and 
cargoes  in  that  port  {The  Progress,  1810,  Edw.  210,  siege  of  Oporto). 
If  property  of  allies  of  Great  Britain  is  retaken  from  the  enemy,  the 
Admiralty  Court  gives  the  benefit  of  its  rule  of  restitution  on  salvage 
to  its  allies,  till  it  appears  that  they  act  towards  British  property  less 
liberally,  in  which  case  it  adopts  their  rule,  and  treats  them  according 
to  their  own  measure  of  justice  (Lord  Stowell,  The  Santa  Cmz,  1798, 
1  Rob.  C.  63).  The  right  of  recaptors  to  salvage  is  extinguished  by 
subsequent  capture  and  condemnation  by  the  enemy  {The  Charlotte 
Caroline,  1812,  1  Dod.  192). 

{AvihoHties. — Kennedy,  Civil  Salvage,  2nd  ed.,  1907 ;  Abbott, 
Merchant  Shipping,  14th  ed.,  1901 ;  Williams  and  Bruce,  Admiralty 
Practice,  3rd  ed.,  1902 ;  Maclachlan,  Merchant  Shipping,  4th  ed.,  1892 ; 
Maude  and  Pollock,  Merchant  Shijjjying,  4th  ed.,  1881 ;  Carver,  Carriage 
by  Sea,  4th  ed.,  1905  ;  Temperley,  Merchant  Shipping  Acts,  2nd  ed.,  1907.] 

Same. — "The  same "  usually  refers  to  the  next  preceding  ante- 
cedent (Co.  Litt.  206),  but  the  phrase  may,  grammatically,  refer  to  more 
than  one  antecedent  {Court  v.  Buckland,  1876,  45  L.  J.  Ch.  216).  See 
the  cases  on  the  phrase  in  a  variety  of  collocations  collected  in  Stroud, 
Jud.  Diet. 

Sam  OS. — See  Ottoman  Empire. 

Sample  for  Analysis. — See  Adulteration;  Analysis. 

Sample,  Sale  by.— See  Sale  of  Goods. 

Sanctuary. — This  is  a  term  which  may  be  properly  applied  to 
any  privileged  place  or  place  of  refuge  where  the  process  of  the  law 
cannot  be  executed.  The  immunity  extended  formerly  not  only  to 
churches  and  churchyards,  but  also  to  various  other  places  in  England, 


136  SAND  GROUSE 

such  as  "Westminster,  Wells,  Norwich,  York,  etc.;  and  it  was  even 
claimed  for  certain  localities  on  the  ground  of  their  having  been  ancient 
palaces  of  the  Crown,  examples  of  which  were  the  district  of  White- 
friars,  the  Savoy,  and  the  Mint  in  London.  Immunity  was  claimed 
in  these  places  both  from  criminal  and  from  civil  process,  with  the 
result  that  many  indigent  persons  and  vagabonds  flocked  thither  to 
evade  the  law,  which  led  to  remedial  statutes  being  passed,  such  as 
26  Hen.  viii.  1534,  c.  13 ;  27  Hen.  viii.  1535,  c.  19 ;  and  39  Hen.  viii. 
1547,  c.  12.  Finally,  the  21  Jac.  i.  1623,  c.  28,  utterly  abolished  all 
privilege  of  sanctuary,  as  well  as  abjuration,  and  its  incidents  of 
attainder  of  blood  and  forfeiture  of  goods. 

Originally,  the  privilege  was  conceded  from  motives  of  mercy  and 
out  of  reverence,  honour,  and  devotion  to  the  localities  so  favoured. 
It  seems  to  have  existed  from  a  very  early  period,  having  been  intro- 
duced into  England  probably  soon  after  the  conversion  of  the  Saxons 
to  Christianity.  As  a  declinatory  plea,  it  was,  along  with  the  plea  of 
benefit  of  clergy,  frequently  used.  If,  within  forty  days,  the  person 
taking  sanctuary  acknowledged  his  fault  and  submitted  himself  to 
banishment,  he  was  allowed  to  go  (see  2  Hale,  P.  C.  236  ;  3  Inst,  115 ; 
Blackstone,  iv.  332,  333). 

Violation  of  sanctuaries  was  punished  by  Othobon  with  excommuni- 
cation, and,  if  satisfaction  were  not  made  within  a  limited  time,  with 
deprivation  (Otho.  Athon.,  p.  101). 

To  some  extent,  a  man's  own  house  is  of  the  nature  of  a  sanctuary, 
in  so  far  as  he  cannot  be  served  with  civil  process  there  unless  he 
himself  admits  the  person  serving  the  process.  But  when  a  crime  has 
been  committed,  a  private  house  may  be  broken  open  to  get  at  the 
criminal. 

See  Abjuration  ;  Benefit  of  Clergy  ;  Arrest. 

Sand  Grouse. — In  1888  it  was  made  an  ofifence  to  kill 
wound,  take,  or  expose  or  offer  for  sale  any  sand  grouse  (Sijrrhaptes 
paradoxiLs)  taken  in  the  United  Kingdom  (51  &  52  Vict.  c.  55).  The 
Act  was  passed  with  a  view  to  assisting  towards  the  acclimatising  these 
birds  in  the  United  Kingdom.  The  original  period  of  protection  was 
from  February  1,  1889,  to  January  1,  1892;  but  the  Act  has  been 
continued  annually  by  expiring  laws  continuance  Acts,  and  is  in  force 
until  December  31,  1909,  8  Edw.  vii.  c.  18.  The  bird  is  not  included 
in  the  schedules  to  the  Wild  Birds  Protection  Acts ;  but  its  eggs  can  be, 
and  in  some  counties  are,  protected  by  orders  under  the  Acts  (Marchant 
and  Watkins,  Wild  Birds  Protection  Acts,  2nd  ed.,  p.  88). 

Sandhurst,  Royal   Military  College— The  Royal 

Military  College  at  Sandhurst  was  founded  by  Eoyal  Warrant  in  1808 
for  the  purpose  of  giving  a  professional  as  well  as  a  general  education 
to  youths  intending  to  become  officers  in  the  cavalry  and  infantry.  Now 
only  special  military  education  is  given  to  candidates  for  commissions 
in  these  branches  of  the  service  and  in  the  Army  Service  Corps ;  and 
admission  is  obtained  by  young  men  as  cadets  either  by  competition 
within  certain  ages,  in  general  scholastic  examinations  under  the 
direction  of  the  Civil  Service  Commissioners ;  or  it  is  granted  to  King's 
Cadets,  Indian  Cadets,  and  Pages  of  Honour,  subject  to  a  qualifying 
examination.     All  candidates  must  also  be  certified  as  physically  fit. 


SAN  MAKING  137 

The  course  of  instruction  extends  at  present  over  eighteen  months  in 
certain  purely  military  subjects,  and  at  the  end  of  it  the  cadets,  having 
passed  a  satisfactory  examination,  are  gazetted  to  regiments,  or  the 
Army  Service  Corps,  as  second  lieutenants  in  the  order  usually  in  which 
they  pass.  The  college  is  under  the  control  of  a  governor  and  com- 
mandant, who  is  a  military  officer  appointed  by,  and  responsible  to, 
the  Secretary  of  State  for  War.  The  college  and  the  property  belong- 
ing to  it  are  vested  in  the  Secretary  of  State  for  War  by  25  &  26  Vict 
c.  33. 

See  Army  ;  Commission  ;  Officers  (Military  and  Naval). 

[^Authority. — Official  Regulations.] 

Sanitation. — The  law  as  to  sanitation  will  be  found  discussed 
in  the  work  under  such  heads  as  London  City;  London  County; 
Nuisance  ;  Public  Health  ;  Quarantine. 

San  IVIarinO. — Area  and  Earlier  History. — San  Marino,  the 
smallest  republic  in  the  world,  is  situated  between  the  Italian  provinces 
of  Forli  and  Pesaro-Urbino,  and  has  an  area  of  38  square  miles,  or  one 
quarter  the  size  of  Eutland. 

The  Republic  derives  its  name  from  a  Dalmatian  mason  who  settled 
there  in  the  3rd  century,  and  claims  to  be  the  oldest  State  in  Europe. 
The  first  authentic  document  proving  the  existence  of  the  community 
dates  from  885.  In  the  15th  century  the  Republic  supported  the  house 
of  Montefeltro  against  that  of  Malatesta,  and  obtained  certain  castles 
and  territories  as  a  reward.  On  the  annexation  of  Urbino  to  the  States 
of  the  Church  in  1631  the  independence  of  San  Marino  was  acknow- 
ledged, and  Napoleon  preserved  its  independence  in  1797.  When 
Pius  IX.  had  designs  on  the  independence  of  San  Marino  in  1854, 
Napoleon  in,  interfered  and  saved  the  Republic,  and  on  the  unifica- 
tion of  Italy  during  the  latter  half  of  the  19th  century  the 
independence  of  San  Marino  was  recognised.  A  new  treaty  of 
friendship  with  the  Kingdom  of  Italy  was  concluded  in  June  28, 
1897. 

ConstittUion  and  Laws. — The  legislative  power  is  vested  in  the 
Great  Council,  which  consists  of  60  members,  of  whom  2  are  appointed 
to  act  as  Regents  (Capitani  reggenti)  every  6  months.  The  members 
of  the  Great  Council  are  made  up  as  follows,  viz. : — 20  nobles, 
20  burgesses,  and  20  rural  landowners,  and  they  are  elected  for  life 
by  the  Council  itself.  The  Regents,  as  representatives  of  the  Great 
Council,  exercise  executive  power.  There  is  also  a  smaller  Council 
composed  of  12  members,  who  are  elected  from  the  Great  Council,  and 
divided  into  4  congresses — Finance,  Law,  Education,  and  Defence.  The 
ancient  Arringo,  a  general  council  of  heads  of  families,  was  revived  in 
1906  as  a  part  of  the  constitution. 

Justice  is  administered  by  a  legal  commissary,  residing  in  the 
Republic,  who  must  be  an  Italian,  and  holds  office  for  3  years.  Two 
Judges,  one  of  appeal,  reside  in  Italy  and  send  their  judicial  sentences 
to  be  read  before  the  Council. 

Civil  legislation  is  chietiy  contained  in  ancient  statutes  of  the 
Republic,  but  there  are  a  few  modern  laws,  notably  a  code  dealing  with 
bills  of  exchange,  a  bill  concerning  mortgages  passed  in  1854,  and  some 
fiscal  legislation.  A  penal  code  was  promulgated  in  1865,  and  there  is  no 
such  thing  as  capital  punishment. 


138  SAEAWAK 

Application  of  Imperial  Statutes. — By  Order  in  Council  of  March  3, 
1900  (St.  R  &  0.,  Eev.  1904,  vol.  v.,  "Fugitive  Criminal,"  p.  218),  the 
Imperial  Extradition  Acts  have  been  applied  to  San  Marino  in  accord- 
ance with  the  provisions  of  the  Treaty  of  October  16,  1899. 

[See  Statesman's  Year-Booh ;  Uncydopcedia  Britannica.] 

Sarawak. — See  Labuan. 
Sark. — See  Channel  Islands.       ' 

Sa'tisfaC'tion. — If  a  person,  being  under  an  obligation  to  pay 
money  or  transfer  property  to  another,  at  some  subsequent  date  does 
pay  money  or  transfer  property,  though  not  of  the  precise  amount  or  in 
the  precise  manner  contemplated  in  the  obligation,  this  payment  will 
in  certain  cases  be  deemed  a  substantial  fulfilment  of  the  obligation,  and 
will "  satisfy  "  it.  For  example,  A.  having  covenanted  that  his  executors 
shall  pay  £1000  to  B.  within  six  months  of  A.'s  decease,  by  his  will  leaves 
B.  £1000.  The  question  arises.  Was  this  meant  to  fulfil  A.'s  obligation, 
or  as  an  act  of  bounty  ? 

The  cases  which  most  often  arise  are — (1)  A  testator  having 
covenanted  to  pay  or  provide  a  portion  for  a  child,  or  one  to  whom 
he  is  in  loco  parentis,  leaves  that  person  a  legacy ;  (2)  a  person  being , 
indebted,  leaves  his  creditor  a  legacy ;  (3)  a  person  being  indebted, 
pays  or  secures  payment  of  a  different  sum  or  of  valuable  property  to 
his  creditor. 

The  converse  case,  when  a  testator  having  made  his  will,  and  given 
a  legacy  to  A,  subsequently  gives  A.  that  identical  amount  or  property, 
though  sometimes  referred  to  as  a  "  satisfaction  "  of  the  legacy,  is  properly 
termed  Ademption.    See  also  Legacy. 

1.  As  between  children  (or  persons  to  whom  the  testator  is  in  loco 
parentis — Lawes  v.  Lawes,  1881,  20  Ch.  D.  81),  equity  leans  in  favour  of 
a  provision  made  by  will,  being  in  satisfaction  of  a  portion  by  contract 
{Thynne  v.  Glengall,  1847, 2  H.  L.  C.  131).  This  is  termed  the  "rule  against 
double  portions."  Thus  a  legacy  of  a  less  amount  than  a  portion  will 
satisfy  it  pro  tanto  ( Warren  v.  Warren,  1783, 1  Bro.  C.  C.  305 ;  28  E.  E. 
1149;  1  Cox  C.  C.  41;  29  E.  E.  1053),  and  a  bequest  of  residue  may 
satisfy  a  portion.    See  also  Portions. 

A  covenant  to  settle  a  share  upon  a  son  for  life,  and  then  upon ,  trusts 
for  the  benefit  of  his  wife  and  children,  is  satisfied  by  an  absolute  bequest 
to  the  son,  as  to  him  only,  but  does  not  satisfy  as  to  the  other  persons 
(In  re  Blundell,  Blundell  v.  Blundell,  [1906]  2  Ch.  222). 

Small  differences  between  the  trusts  of  the  portion  and  the  trusts  of 
the  legacy  will  not  prevent  the  presumption  that  satisfaction  was  intended 
{Chichester  v.  Coventry,  1867,  L.  E.  2  H.  L.  71 ;  Ritssell  v.  St.  Aubyn,  1876, 
2  Ch.  D.  398 ;  Mayd  v.  Field,  1876,  3  Ch.  D.  587).  The  question  is.  Are 
the  provisions  substantially  the  same  ?  (  Weall  v.  Rice,  1831, 2  Euss.  &  M. 
251 ;  34  E.  E.  83 ;  39  E.  E.  390). 

Parol  evidence  of  the  testator's  intention  is  admissible  in  order  to 
rebut  the  presumption  (Tussaud  v.  Tussaud,  1878,  9  Ch.  D.  363  ;  Leighton 
V.  Leighton,  1874,  L.  E.  18  Eq.  458 ;  In  re  Scott,  Langton  v.  Scott,  [1903] 
1  Ch.  1),  and  also  to  confirm  (though  not  to  raise)  it  {Kirk  v.  Eddowes, 
1844,  3  Hare,  509 ;  67  E.  E.  482).  Of  course,  a  person  entitled,  under 
a  covenant  which  is  legally  enforceable,  to  a  certain  payment,  cannot  be 
compelled  to  accept  a  bequest  in  lieu  thereof,  but  may  stand  on  his  legal 
rights.    See  Election. 


SAVINGS  BANK  139 

It  will  be  observed  that  the  doctrine  has  no  application  to  cases 
where  the  prior  portion  has  actually  been  transferred  or  paid.  See  also 
Advancement. 

2.  Satisfaction  of  Debts  hy  Legacies. — The  presumption  that  a  testator 
leaving  a  legacy  to  a  creditor  intends  thereby  to  pay  the  debt  must 
usually  be  opposed  to  the  fact,  and  the  application  of  the  doctrine  of 
satisfaction  to  ordinary  debts  is  now  looked  on  with  disfavour,  and 
small  circumstances  have  been  relied  on  to  displace  the  presumption. 
See  Legacy. 

3.  Satisfaction  of  Liability  hy  Payment. — The  case  which  has  most 
frequently  raised  the  question  is :  A  parent  has  incurred  a  liability  to  a 
child  for  breach  of  trust,  and  has  subsequently  settled  property  of  greater 
value  on  that  child. 

Primd  facie  it  will  be  presumed  that  the  parent  intended  to  make 
good  the  breach  of  trust,  and  that  the  child  accepted  the  provision  in 
satisfaction  of  his  claim  {Plunket  v,  Lewis,  1844,  3  Hare,  316,  472 ;  67 
E.  R  403,  467) ;  but  this  presumption  may  be  rebutted  by  the  facts  of 
the  case  {Crichton  v.  Crichtan,  [1896]  1  Ch.  870). 

Satisfaction  on  the  Roll,  Entry  of.— Under  the 

former  Kules  of  Court  it  was  provided  that  as  soon  as  a  judgment  was 
satisfied  by  payment,  levy  or  otherwise,  the  debtor  was  entitled  to  have 
satisfaction  entered.  There  is  no  provision  as  to  entry  of  satisfaction 
in  the  present  Rules  of  Court  (see  Chitty's  Archbold's  Practice,  14th  ed., 
vol.  i.  779). 

Satisfaction,    Payment    into    Court    in.— See 

Payment  into  Court. 

Satisfied  Terms. — The  purposes  for  which  long  terms  of 
years  were  employed  by  conveyancers  are  stated  under  Terms  of  Years. 
When  those  purposes  had  been  accomplished,  or,  in  other  words,  when 
the  money  had  been  raised,  or  there  was  no  longer  occasion  for  raising 
the  money  to  raise  which  the  terms  had  originally  been  created,  there 
was  clearly  no  need  to  have  it  subsisting.  The  term  was  in  that  event 
said  to  be  a  satisfied  term,  and  there  were  three  ways  in  which  it  could 
be  put  an  end  to,  viz. — (1)  By  a  proviso  for  Cesser  inserted  in  the  deed 
creating  it ;  (2)  by  Merger,  which  could  take  place  either  by  an  express 
surrender  of  it  to  the  freeholder  to  the  intent  that  it  should  merge,  or 
by  the  accidental  coming  together  of  the  term  and  the  freehold  in  the 
same  person ;  (3)  by  its  being  assigned  to  new  trustees  in  trust  to  attend 
the  inheritance  (8  &  9  Vict.  c.  112,  s.  1).    See  Attendant  Terms. 

Saving's  Banl^. — The  term  "savings  bank"  includes  both 
trustee  and  post  office  savings  banks.  The  former  class  of  banks  is 
governed  by  the  Trustee  Savings  Banks  Acts,  1863  to  1904,  of  which 
the  Trustee  Savings  Bank  Act,  1893,  56  &  57  Vict.  c.  69,  includes  so 
much  of  the  Post  Office  Savings  Bank  Act,  1863,  26  &  27  Vict.  c.  14, 
and  of  the  Savings  Banks  Act,  1880,  43  &  44  Vict.  c.  36,  as  relates  to 
trustee  savings  banks ;  and  the  latter  by  the  Post  Office  Savings  Banks, 
1861  to  1904. 

Trustee  Savings  Bank. — A  trustee  savings  bank  is  a  "  society  formed 
...  for  the  purpose  of  establishing  any  institution  in  the  nature  of 
a  bank"  to  receive  deposits  for  the  benefit  of  the  depositors,  and  to 


140  SAVINGS  BANK 

"  accumulate  the  produce  of  so  much  thereof  as  shall  not  be  required  by 
the  depositors,  their  executors  or  administrators,  at  compound  interest," 
returning  such  deposits  and  the  produce  thereof  to  the  depositors,  their 
executors  or  administrators,  deducting  therefrom  the  amount  required 
for  the  necessary  expenses  attending  the  management  of  the  institution, 
but  "deriving  no  benefit  whatsoever  from  any  such  deposit  or  the 
produce  thereof "  (26  &  27  Vict.  c.  87,  s.  2).  It  would  appear  that  the 
society  thus  constituted  consists  only  of  the  trustees  and  managers.  A 
trustee  savings  bank  may  not  be  described  in  any  manner  importing 
that  the  Government  is  responsible  or  liable  to  the  depositors  for  the 
deposits  (54  &  55  Vict.  c.  21,  s.  1  (1)). 

Two  written  or  printed  copies  of  all  rules  and  alterations  of  rules 
signed  by  the  trustees  are  to  be  sent  to  the  Registrar  of  Friendly 
Societies,  and,  if  in  conformity  with  law,  the  registrar  is  to  return  one 
certified  copy  to  the  institution  and  to  transmit  the  other  to  the 
National  Debt  Commissioners  (26  &  27  Vict.  c.  87,  s.  4).  The  rules 
must,  inter  alia,  provide :  That  not  less  than  two  trustees,  managers,  or 
paid  officers  shall  be  present  at  every  deposit  and  repayment ;  that  the 
depositor's  pass-book  shall  be  compared  with  the  ledger  on  every  trans- 
action of  repayment,  and  on  its  first  production  at  the  bank  after  every 
20th  November,  and  shall  be  produced  for  examination  at  the  bank  at 
least  once  a  year ;  that  no  money  be  received  from  or  paid  to  depositors 
except  at  the  bank  or  its  branch  offices,  and  during  the  usual  hours  of 
public  business ;  that  the  trustees  and  managers  shall  appoint  a  public 
accountant,  or  one  or  more  auditors  (but  not  out  of  their  own  body),  to 
audit  the  books  of  the  bank  not  less  than  once  in  every  half-year,  that 
the  trustees  shall  hold  meetings  at  least  once  in  every  half-year,  and 
shall  keep  minutes  of  their  proceedings  (26  &  27  Vict.  c.  87,  s.  6).  An 
auditor  shall  be  appointed  for  a  term  not  exceeding  one  year,  but  a 
retiring  auditor  is  eligible  for  reappointment  (4  Edw.  vii.  c.  8,  s,  1). 

In  the  case  of  savings  banks  authorised  by  the  National  Debt 
Commissioners  to  make  "special  investments"  under  sees.  15  and  16  of 
26  &  27  Vict.  c.  87,  of  the  character  described  below,  the  rules  with 
respect  to  such  special  investments  must  provide  that  the  trustees  shall 
have  power  to  demand  at  least  one  month's  notice  in  advance  of  any 
repayment  of  whatever  amount  required  by  a  depositor,  and  the  trustees 
shall  cause  to  be  printed  in  the  pass-books  in  use  for  the  purpose  of 
special  investments  a  notice,  stating  that  the  security  of  the  special 
investments  is  not  in  any  way  guaranteed  by  the  Government  (4  Edw. 
VII.  c.  8,  s.  6  (3),  (4)).  The  rules  may  also  provide  for  the  execution 
and  signature  of  instruments  and  documents  on  behalf  of  the  trustees 
by  not  less  than  four  trustees  authorised  for  the  purpose  by  the  trustees, 
and  any  such  rules  shall,  if  duly  certified,  be  binding  on  all  persons  and 
be  operative  for  all  purposes ;  but  shall  not  affect  anything  contained  in 
any  regulations  made  by  the  National  Debt  Commissioners,  under  sec. 
16  of  the  Revenue  Act,  1903,  3  Edw.  vii.  c.  46,  empowering  the  Com- 
missioners to  make  regulations,  irder  alia,  with  respect  to  the  mode 
of  payment  of  the  drafts  of  trustees  of  savings  banks  (4  Edw.  vii. 
c.  8,  s.  7). 

Every  treasurer,  actuary,  or  cashier  intrusted  with  the  custody  of 
money,  and  every  officer  receiving  any  salary,  must  give  security,  to  be 
approved  by  not  less  than  two  trustees  and  three  managers  (26  &  27 
Vict.  c.  87,  s.  8 ;  54  &  55  Vict.  c.  21,  s.  9). 

Compensation,  either   in   the  form  of    a   yearly  allowance,   or   of 


SAVINGS  BANK  141 

a  gratuity  of  a  capital  amount,  or  by  a  combination  of  both  these 
means,  may,  with  the  consent  of  the  Inspection  Committee,  be 
granted  by  the  trustees  to  any  officer  who,  on  his  ceasing  to  hold 
office,  becomes  incapable  of  discharging  his  duties  by  reason  of  old 
age  or  permanent  infirmity  of  body  or  mind,  and  who  has  com- 
pleted not  less  than  ten  years'  service  as  an  officer  of  the  bank 
(4  Edw.  VII.  c.  8,  s.  3  (1)).  Such  yearly  allowance,  however,  must  not 
exceed  such  a  sum  as  might  be  granted  by  way  of  yearly  allowance  or 
gratuity  respectively,  under  sees.  2  and  6  of  the  Superannuation  Act, 
1859,  22  Vict.  c.  26,  to  persons  to  whom  a  superannuation  allowance 
may  be  granted  under  that  Act ;  and  a  combined  yearly  allowance  and 
gratuity  shall,  for  the  purposes  of  this  provision,  be  treated  as  a  yearly 
allowance  consisting  of  the  actual  yearly  allowance  increased  by  an 
amount  representing  a  yearly  allowance  equivalent  to  the  gratuity 
(4  Edw.  VII.  c.  8,  s.  3  (2)).  Any  such  compensation  shall  be  paid  as 
part  of  the  current  expenses  of  the  bank,  or,  with  the  sanction  of  the 
Inspection  Committee,  from  the  moneys  standing  to  the  credit  of  the 
separate  surplus  fund;  and  compensation  payable  by  way  of  yearly 
allowance  shall  only  be  continued  so  long  as,  in  the  opinion  of  the 
Inspection  Committee,  the  surplus  funds  of  the  bank  admit  of  or  can 
provide  for  such  payment  (4  Edw.  vii.  c.  8,  s.  3  (3)  and  (4)). 

No  trustee  or  manager  is  personally  liable,  except— (1)  For  money 
actually  received  by  him  and  not  paid  over  in  accordance  with  the 
rules ;  (2)  for  neglect  in  complying  with  the  statutory  regulations  as  to 
the  maintenance  of  checks,  the  audit  of  accounts,  and  the  holding  of 
meetings ;  and  (3)  for  neglect  in  taking  security  from  officers  (26  &  27 
Vict.  c.  87,  8.  11).  The  Act  of  1863,  however,  authorises  trustees  of 
savings  banks  in  Ireland,  by  declaration  deposited  with  the  National 
Debt  Commissioners,  to  limit  such  responsibility  (except  as  regards 
moneys  actually  received  by  them)  to  a  specific  amount  not  less  than 
£100  (s.  12);  and  such  banks  are  also  governed  by  special  provisions 
as  to  auditors,  rules,  and  the  closing  of  accounts  with  the  Commissioners 
(26  &  27  Vict.  c.  87,  ss.  51,  52,  53).  A  trustee  may  be  removed  from 
office  for  non-attendance  at  meetings  and  neglect  of  his  statutory 
obligations,  unless  he  can  explain  such  neglect  to  the  satisfaction  of  the 
Inspection  Committee  of  Trustee  Savings  Banks  (54  &  55  Vict.  c.  21, 

8.  7). 

All  property  and  "  all  rights  or  claims  belonging  to  or  had  by  a 
savings  bank  "  are  vested  in  tlie  trustees  for  the  use  of  such  bank  and 
the  respective  depositors  therein,  and  the  bank  sues  and  is  sued  in  the 
names  of  the  trustees  (26  &  27  Vict.  c.  87,  s.  10).  All  moneys  must  be 
invested  by  the  trustees  in  the  Bank  of  England  or  the  Bank  of  Ireland 
in  the  names  of  the  National  Debt  Commissioners.  Where  it  can  be 
shown  to  the  satisfaction  of  the  National  Debt  Commissioners  that  a 
savings  bank  is  open  daily  and  has  an  aggregate  cash  liability  to  its 
depositors,  irrespective  of  the  amount  of  any  special  investment,  of  not 
less  than  £200,000,  the  trustees  of  such  bank  may  also,  subject  to 
certain  restrictions  prescribed  by  sec.  10  of  54  &  55  Vict.  c.  21,  receive 
money  from  depositors  for  other  purposes  than  that  of  investment  with 
the  Commissioners,  termed  special  investments,  to  be  applied  in  any 
other  manner  permitted  by  the  rules  of  the  institution.  The  Com- 
missioners may,  however,  withdraw  their  authority  for  such  investments 
if  at  any  time,  in  their  opinion,  either  of  tlie  two  above  conditions  is  not 
for  the  time  being  complied  with.     The  term  "special  investments'* 


142  SAVINGS  BANK 

includes  all  investments  authorised  by  law  for  trustees,  and  any 
securities  issued  under  the  Loans  Act,  1875,  and  loans  secured  on  local 
rates  levied  under  Act  of  Parliament  by  local  authorities  authorised  to 
borrow  on  that  security  (26  &  27  Vict.  c.  87,  ss.  15,  16 ;  4  Edw.  vii. 
c.  8,  s.  6). 

The  trustees  may,  with  the  consent  of  the  National  Debt  Com- 
missioners, purchase  land — a  term  including  hereditaments  and  chattels 
real,  and  in  Scotland  heritable  subjects  of  whatsoever  description — or 
erect  buildings  for  the  purposes  of  their  savings  bank.  For  these 
purposes  they  may  apply  money  standing  to  the  separate  surplus  fund 
account  of  their  bank,  and,  with  the  like  consent,  may  sell,  exchange,  or 
lease  any  lands  or  buildings  acquired  by  them  for  the  purpose  of  such 
savings  bank  or  any  part  thereof ;  and  no  purchaser,  assignee,  or  tenant 
shall  be  bound  to  inquire  as  to  the  authority  for  or  consent  of  the 
National  Debt  Commissioners,  and  the  receipt  of  the  trustees  for  the 
time  being  shall  be  a  discharge  for  all  the  moneys  accruing  from  or 
in  connection  with  such  sale,  exchange,  or  lease.  The  moneys  thus 
accruing  shall  be  accounted  for  and  the  balance,  after  deducting  the 
amount  of  any  necessary  expenses  incurred  by  the  trustees  in  connection 
therewith,  paid  over  to  the  Commissioners  and  by  them  carried  to  the 
separate  surplus  fund  to  the  credit  of  the  trustees ;  and  any  conveyance, 
lease,  deed,  act,  or  thing  executed,  made  or  done  by  the  trustees  for 
giving  legal  effect  thereto  shall  be  valid  to  all  intents  and  purposes 
(4  Edw.  VII.  c.  8,  s.  4). 

Every  depositor  on  making  a  first  deposit  must  make  a  declaration, 
in  form  prescribed  by  the  National  Debt  Commissioners,  that  the 
person  or  persons  on  whose  behalf  the  deposit  is  made  is  or  are  not 
entitled  (a)  to  any  deposit  or  subsequent  deposit  or  benefit  from  the 
funds  of  any  other  savings  bank ;  or  (b)  to  any  other  funds  in  the  same 
bank.  Deposits  made  in  contravention  of  these  provisions  are  liable  to 
forfeiture  to  the  National  Debt  Commissioners  (26  &  27  Vict.  c.  87, 
8.  38 ;  54  &  55  Vict.  c.  2,  s.  12 ;  Qiieen  v.  Littledale,  1882, 10  L.  R  Ir.  78, 
and  12  L.  R  Ir.  97).  The  trustees  may  not  receive  from  any  depositor 
any  sum  exceeding  £50  within  one  year  or  £200  in  the  whole  (26  & 
27  Vict.  c.  87,  s.  39 ;  56  &  57  Vict.  c.  69,  ss.  1,  2 ;  4  Edw.  vii.  c.  8,  s.  8). 
The  interest  payable  to  depositors  may  not  exceed  £2,  15s.  per  cent., 
that  payable  by  the  National  Debt  Commissioners  to  the  trustees  being 
£3  per  cent.  (43  &  44  Vict.  c.  36,  s.  ii. ;  54  &  55  Vict.  c.  21,  s.  14). 
Depositors  may  invest  in  Government  stock  any  amount  not  exceed- 
ing £200  in  one  year  or  £500  in  the  whole  (43  &  44  Vict.  c.  37,  s.  iii. ; 
56  &  57  Vict.  c.  69,  ss.  2,  3) ;  and  may  also  obtain  from  the  National 
Debt  Commissioners  the  grant  of  a  savings  bank  annuity  and  of 
a  savings  bank  insurance  of  any  amount  from  £1  to  £100  (45  &  46 
Vict.  c.  51,  ss.  ii.  iii.  iv.).  Deposits  may  be  made  by  minors,  by  persons 
acting  as  trustees  on  behalf  of  others,  and  by  married  women  (26  &  27 
Vict.  c.  87,  ss.  30,  31,  37 ;  45  &  46  Vict.  c.  75,  ss.  vi.  vii).  All  deposits, 
savings  banks  annuities,  and  Government  stocks  standing  in  the  sole 
name  of  a  married  woman  at  the  commencement  of  the  Married 
Women's  Property  Act,  1882,  are  to  be  deemed  her  separate  property 
(26  &  27  Vict.  c.  87,  ss.  30,  31,  37 ;  45  &  46  Vict.  c.  75,  ss.  vi.  vii.). 
The  trustees  of  registered  friendly  societies  may  invest  without  restric- 
tion as  to  amount ;  and  deposits  may,  subject  to  certain  limitations,  also 
be  made  by  building  societies,  charitable  or  provident  institutions,  and 
penny  banks  (26  &  27  Vict.  c.  87,  ss.  32,  33 ;    Building  Societies  Act, 


SAVINGS  BANK  143 

1874,  s.  25).  Depositors  may  nominate  persons  to  receive  sums  not 
exceeding  £100  (including  stock  and  annuities)  due  to  them  at  death 
or  under  insurances  not  exceeding  £50  (50  &  51  Vict.  c.  40,  s.  3  (2);  45 
&  46  Vict.  c.  51,  s.  vi.),  and  they  also  enjoy  special  exemptions  with 
regard  to  probate  duty  (26  &  27  Vict.  c.  87,  ss.  41,  42 ;  50  &  51  Vict, 
c.  40,  8.  3). 

All  disputes  between  trustees  and  depositors  (except  apparently  such 
as  relate  to  questions  between  husband  and  wife  (45  &  46  Vict.  c.  75, 
8.  17))  must  be  referred  to  the  Registrar  of  Friendly  Societies,  whose 
award  is  binding  on  all  parties  without  appeal  (26  &  27  Vict.  c.  87, 
s.  49 ;  39  &  40  Vict.  c.  52,  s.  2  (1);  Crisp  v.  Bunlury,  1832,  8  Bing.  394). 
Such  award  may,  however,  be  set  aside  if  he  neglects  to  comply  with  the 
provisions  of  sec.  48  of  the  Savings  Bank  Act,  1863  {Lynch  v.  Fitzgerald, 
Brunker's  Digest  of  Irish  Cases,  1869).  The  Registrar  is  not  bound  to 
hear  a  dispute  where  the  parties  are  proved  to  have  been  guilty  of  illegal 
acts  {R.  V.  Littledale,  1882,  10  L.  R.  Jr.  79 ;  12  L.  R.  Ir.  97). 

Any  two  or  more  banks  may,  with  the  assent  of  the  National  Debt 
Commissioners,  on  the  recommendation  of  the  Inspection  Committee, 
amalgamate  by  special  resolution  of  both  or  all  such  banks,  with  or 
without  any  dissolution  or  division  of  the  funds  of  such  banks  or  either 
or  any  of  them.  All  the  funds  and  property  of  the  amalgamating  banks 
thereby  become  vested  in  the  amalgamated  bank  without  the  necessity 
of  any  form  of  conveyance  or  assignment  other  than  the  special  resolu- 
tion, which  must  be  passed  by  not  less  than  three-fourths  of  the  trustees 
of  the  bank  present  at  a  general  meeting,  of  which  notice  has  been  duly 
given  according  to  the  rules,  and  confirmed  by  a  majority  of  the  trustees 
present  at  a  subsequent  meeting,  of  which  notice  has  been  duly  given 
not  less  than  fourteen  days  or  more  than  one  month  from  the  date  of 
the  first  mentioned  meeting  (4  Edw.  vii.  c.  8,  s.  5). 

The  Treasury  may,  on  the  representation  of  the  depositors  or  of  the 
National  Debt  Commissioners,  apply  to  the  High  Courts  in  England  or 
Ireland,  or  the  Court  of  Session  in  Scotland,  for  the  appointment  of  a 
commissioner  to  hold  a  local  inquiry  into  the  affairs  of  any  savings  bank 
(50  &  51  Vict.  c.  47,  s.  2).  The  Savings  Bank  Inspection  Committee 
may,  by  54  &  55  Vict.  c.  47,  s.  3,  appoint  inspectors  of  savings  banks, 
and  the  National  Debt  Commissioners  may  close  any  bank  reported  by 
the  Committee  to  have  failed  to  comply  with  the  requirements  of  the 
Acts,  or  may  report  to  the  Treasury  with  a  view  to  the  institution  of 
proceedings  under  sec.  2  of  the  Trustee  Savings  Bank  Act,  1887.  A 
trustee  savings  bank  is  an  "unregistered  association,"  which  may  be 
wound  up  under  the  Companies  Act,  1862,  and  a  petition  for  winding 
up  may  be  presented  by  any  person  authorised  under  that  Act,  or  by 
the  National  Debt  Commissioners,  or  by  a  commissioner  appointed 
under  the  Trustee  Savings  Bank  Act,  1887,  50  &  51  Vict.  c.  47,  s.  3. 
On  the  closing  of  a  savings  bank  the  trustees  shall  notify  the  same 
to  the  National  Debt  Commissioners,  and  pay  over  to  them  any  sum 
realised  by  the  sale  of  any  property  held  by  them.  They  must  also 
give  public  notice  to  the  depositors  of  such  closing,  and  of  the  facilities 
afforded  by  law  for  transferring  deposits  to  post  office  savings  banks, 
and  must  not  close  the  bank  before  the  expiration  of  one  month  from 
the  giving  of  such  notice  (26  Vict.  c.  14,  ss.  2,  3;  54  &  55  Vict, 
c.  21,  s.  6). 

The  high  rate  of  interest  originally  paid  to  depositors  in  trustee 
savings  banks,  which  until  1828  amounted  to  5  per  cent.,  resulted  in  a 


144  SAVINGS  BANK 

deficiency  on  the  Savings  Bank  Account,  which  was  provided  for  in  the 
Savings  Bank  Act,  1880,  by  the  creation  of  a  terminable  annuity  for 
not  exceeding  twenty-eight  years,  interest  being  calculated  at  3f  per 
cent.  (43  &  44  Vict.  c.  36,  s.  1) ;  and  it  is  enacted  by  sec.  10  of  4  Edw.  vii. 
c.  8,  that  the  interest  on  this  deficiency  shall  be  treated  as  income 
arising  from  the  securities  in  which  sums  received  by  the  National 
Debt  Commissioners  from  the  trustees  of  savings  banks  are  invested. 

Post  Office  Saviru^s  Banks. — The  purpose  of  a  post  office  savings  bank 
is  "  to  grant  additional  facilities  for  depositing  small  savings  at  interest, 
with  the  security  of  the  Grovernment  for  the  repayment  thereof,"  the 
Postmaster- General  being  empowered  to  authorise  his  officers  to  receive 
deposits,  which  must  not  be  of  less  amount  than  one  shilling  nor  of  any 
sum  nor  a  multiple  thereof  (24  Vict.  c.  4,  s.  2),  "  under  such  regulations 
as  he,  with  the  concurrence  of  the  Commissioners  of  His  Majesty's 
Treasury,  may  prescribe  in  that  respect "  (24  Vict.  c.  14,  pream.  and  s.  1). 
Every  deposit  is  to  be  entered  at  the  time  in  the  depositor's  book  by 
any  officer  of  the  Postmaster-General  appointed  for  the  purpose,  and 
the  entry  attested  by  him  and  by  the  dated  stamp  of  his  office,  and  the 
amount  to  be  reported  on  the  day  of  its  receipt  to  the  Postmaster- 
General,  whose  acknowledgment,  "  to  be  forthwith  transmitted  to  the 
depositor,"  is  conclusive  evidence  of  the  depositor's  title  to  repayment, 
with  interest,  upon  demand  made,  in  the  case  of  all  deposits  exceeding 
£1  (24  Vict.  c.  4,  s.  2).  Where,  however,  the  amount  deposited  is  under 
£1  the  entry  in  the  depositor's  book  is  conclusive  evidence  of  such  title 
in  the  same  manner  as  an  acknowledgment  of  deposit  by  the  Postmaster- 
General  is  with  respect  to  deposits  in  excess  of  that  sum  (4  Edw.  vii. 
c.  8,  8.  11). 

The  law  (which  is  chiefly  embodied  in  the  regulations)  is  substan- 
tially identical  with  that  governing  trustee  savings  banks,  except  as 
regards — the  absence  of  statutory  checks  on  officers,  rendered  unneces- 
sary by  State  security  for  deposits ;  the  lower  rate  of  interest  on  deposits 
(£2,  lOs.  per  cent.) ;  and  the  determination  by  the  Postmaster-General  of 
the  questions  of  payments  on  death  (as  to  which  he  exercises  a  some- 
what wider  discretion) ;  and  of  forfeiture  for  double  deposits  (24  Vict, 
c.  14,  s.  7 ;  7  &  8  Vict.  c.  63,  ss.  3, 11). 

Sums  standing  to  the  credit  of  depositors  may,  under  regulations 
made  by  the  Postmaster-General  with  consent  of  the  Treasury,  be  trans- 
ferred from  or  to  any  Government  savings  bank  in  any  British  posses- 
sion or  foreign  country,  and  the  Postmaster-General  may  place  any 
amount  so  transferred  to  the  post  office  savings  bank  to  the  credit  of 
a  depositor's  account  in  that  bank  although  the  amount  transferred 
may  exceed  that  which  a  depositor  may  deposit  in  any  one  savings 
bank  year.  No  amount  shall,  however,  be  so  credited  which  shall  make 
the  total  amount  standing  to  the  credit  of  the  account  exceed  the 
maximum  for  the  time  being  allowed  by  law  (4  Edw.  vii.  c.  8,  s.  12). 

The  Savings  Bank  Acts,  1880  (s.  4)  and  1887  (s.  2),  empower  the 
Treasury,  with  the  consent  of  the  National  Debt  Commissioners  and  of 
the  Postmaster-General  respectively,  to  make  regulations  for  trustee 
and  post  office  savings  banks  as  to  investments  in  stock  and  other 
matters  not  fully  provided  for  by  statute.  Both  the  National  Debt 
Commissioners  and  the  Postmaster-General  are  required  to  lay  annually 
before  Parliament  statements  respectively  showing  the  liabilities  of  the 
Government  to  trustee  savings  banks  and  to  friendly  societies,  and  its 
liabilities  to  depositors  in  post  office  savings  banks  at  the  close  of  each 


SAY;  SAY  ABOUT  145 

year  ending  on  the  30th  November  (26  &  27  Vict.  c.  87,  s.  60 ;  24  Vict, 
c.  14,  s.  12 ;  4  Edw.  vii.  c.  8,  s.  9). 

Railway  Savings  Banks  are  governed  by  special  Acts  of  Parliament, 
under  which  the  Eegistrar  of  Friendly  Societies  exercises  functions 
which  vary  with  the  terms  of  the  respective  Acts. 

Naval  Savings  Banks,  for  the  benefit  of  warrant  officers  and  men  of 
the  Koyal  Navy,  are  under  the  control  of  the  Admiralty,  and 

Military  Savings  Banks  under  that  of  the  War  Office,  and  are  respec- 
tively regulated  by  the  Naval  Savings  Bank  Act,  1866,  29  &  30  Vict. 
0.  43,  and  by  the  Military  Savings  Bank  Act,  1859,  22  &  23  Vict.  c.  20. 

Savings  Banks  for  Seamen,  which  were  first  authorised  by  the  Mer- 
chant Shipping  Act,  1854,  and  to  which  the  provisions  of  the  Savings 
Bank  Act  of  1863  are  also  applicable,  are  now  governed  by  sees.  148-154 
of  the  Merchant  Shipping  Act,  1894,  57  &  58  Vict.  c.  60 ;  and  by  sec.  141 
of  that  Act  allotment  notes  may  be  granted  by  seamen  for  any  part  of 
their  wages,  not  exceeding  one  half,  in  favour  of  a  seaman's  near  relative 
or  a  trustee  or  a  post  office  savings  bank,  to  be  made  in  favour  of  such 
persons  and  carried  into  effect  in  such  manner  as  may  be  prescribed  by 
the  Board  of  Trade  regulations. 

Fenny  Savings  Banks,  which  first  received  legal  recognition  under 
sec.  15  of  26  &  27  Vict.  c.  87,  authorising  the  investment  of  their  funds 
in  trustee  savings  banks,  may  be  registered  under  the  Friendly  Societies 
Acts  in  virtue  of  a  special  Treasury  authority  of  23rd  March  1877, 
issued  under  sees.  8  and  9  of  the  Friendly  Societies  Act,  1875 ;  and, 
whether  registered  or  not,  may  invest  their  funds  in  savings  banks 
without  restriction  as  to  amount,  subject  to  the  consent  of  the  National 
Debt  Commissioners.  Sec.  2  of  4  Edw.  vii.  c.  8,  authorises  the  trustees 
of  a  trustee  savings  bank  and  the  Postmaster-General  to  defray  the 
expenses  of  penny  savings  banks  depositing  with  them,  incurred  with 
respect  to  account  books  and  stationery  and  the  audit  and  inspection 
of  books  and  accounts,  if  the  rules  of  such  penny  savings  banks  fix  £5 
as  the  maximum  amount  which  may  stand  to  the  credit  of  any  depositor 
therein  and  also  provide  for  transfer  of  the  same,  upon  the  attainment 
of  such  maximum,  to  an  account  opened  in  the  depositor's  own  name 
in  the  savings  bank  where  the  deposit  account  of  the  penny  savings 
bank  is  kept  (4  Edw.  vii.  c.  8,  s.  3).  In  the  case  of  a  trustee  savings 
bank,  the  expenses  so  defrayed  are  to  be  deemed  "  necessary  expenses 
of  a  trustee  savings  bank  "  within  the  meaning  of  sec.  2  of  the  Trustee 
Savings  Bank  Act,  1863  (4  Edw.  vil.  c.  8,  s.  2). 

Savour. — To  partake  of  the  nature  of.  Personal  estate  con- 
sisting of  an  interest  in,  or  arising  out  of  land,  is  said  to  "  savour  of  the 
realty,"  and  is  called  "  impure  personalty  "  (see  2  Black.  Com.,  386), 

Sa.y  ;  Say  about. — "These  two  words  used  together  seem  to 
be  employed  for  the  purpose  of  showing  that  nothing  absolute  or  definite 
in  the  way  of  allegation  of  quantity  was  intended  on  the  part  of  the 
vendor  "  (per  Montague  Smith,  J.,  in  M'Co^inel  v.  Murphy,  1873,  L.  R. 
5  P.  C.  217 ;  but  see  Morris  v.  Levison,  1876,  1  C.  P.  D.  155). 

"  Say  from." — These  words,  like  "  say  about,"  may  be  differently  con- 
strued, according  to  the  context.  See  Gwillim  v.  Daniel,  1835,  4  L.  J. 
Ex.  174;  Tanvaco  v.  L^lcas,  1859,  28  L.  J.  Q.  B.  301. 

"  Say  not  less  than." — These  words  in  a  contract  were  held  not  to 
be  mere  words  of  expectation,  but  that  they  amounted  to  a  contract 
VOL.  XIIL  10 


146  SCANDAL 

to  deliver  at  least  that  quantity  {Leeming  v.  Snaith,  1851,  16  Q.  B. 
275). 

Sca.ncla.Ii — l.  So  far  as  this  word  is  used  with  reference  to  oral 
or  written  defamation,  it  is  dealt  with  under  Defamation.  It  still 
appears  in  indictments  for  libel  offences  as  a  vituperative  description  of 
the  enormity  of  the  ofifence  charged. 

2.  Under  the  Canons  of  1603  (109),  which  are  in  accordance  with  the 
Statute  of  Circumspecte  Agatis  (13  Edw.  i.  st.  4),  ecclesiastical  Courts 
have  cognisance  of  scandalous  living  by  members  of  the  Church,  clergy 
or  laymen,  subject  to  limitations  as  to  fornication  (27  Geo.  ill.  c.  44)  and 
defamation  (18  &  19  Vict.  c.  41),  and  the  clergy  are  specially  subject  to 
ecclesiastical  discipline.  For  conduct  bringing  scandal  on  the  estate  of 
the  clergy,  see  Canon  75 ;  Phillimore,  Eccl.  Law,  2nd  ed.,  836. 

Scandal  um  ma.gnatum  (Defamation  of  great  men).— 
Defamatory  words  spoken  in  derogation  of  a  peer,  a  judge,  or  other  great 
officer  of  the  realm  were  held  to  be  particularly  heinous,  and  an  action 
lay,  under  certain  statutes  of  the  reigns  of  Edward  i.  and  Kichard  ii. 
(3  JEdw.  I.  c.  34;  2  Rich.  ii.  c.  5;  12  Eich.  ii.  c.  11),  to  recover  damages 
for  the  injury  caused  by  the  slander,  and  the  slanderer  was  also  liable  to 
be  punished.  Even  words  which,  if  spoken  of  an  ordinary  subject,  were 
not  actionable,  were  actionable  without  proof  of  special  damage  if  spoken 
of  any  of  these  dignitaries.  The  statutes  mentioned,  after  being  long 
obsolete — the  last  proceedings  under  them  being  in  the  reign  of  Queen 
Anne — were  repealed  by  the  Statute  Law  Revision  Act,  1887  (3  Black. 
Com.y  123,  124 ;  Blake  Odgers,  lAld  and  Slander,  4th  ed.,  71,  72). 

Scavag'e. — This  term,  a  corruption  of  "  she  wage  "  (Skeat,  Etymol. 
Diet  sub  voc.  "  Scavenger  "),  denoted  a  kind  of  toll  or  custom  exacted  by 
corporations  of  towns  for  goods  brought  within  the  limits  of  their  juris- 
diction and  shown  or  exposed  for  sale  there  (Toml.  Law  Diet).  It 
could  not  legally  be  taken  from  denizens  except  in  London  (19  Hen.  vii. 
c.  8). 

Scavenger  ;  Scavenging. — The  obligation  to  cleanse  and 
scavenge  streets  and  highways,  and  to  remove  dust  and  domestic  refuse, 
is  now  imposed  on  the  sanitary  authority.     See  Refuse,  Removal  of. 

Schedule. — Schedules  are  sometimes  annexed  to  Acts  of  Parlia- 
ment or  to  legal  instruments,  for  the  sake  of  convenience  in  stating 
specific  matters.  "Words  in  a  form  given  in  a  schedule  for  convenience 
sake  are  not  to  restrain  the  operation  of  an  enactment  (see  Dean  v.  Green, 
1882,  8  P.  D.,  at  p.  89).  A  schedule  in  an  Act  of  Parliament  is  a  mere 
question  of  drafting — a  mere  question  of  words.  The  schedule  is  as  much 
a  part  of  the  statute,  and  is  as  much  an  enactment,  as  any  other  part 
(see  A.-G.  v.  Lamplough,  1878,  3  Ex.  D.,  at  p.  229).  When  forms  are 
inserted  in  a  schedule  merely  as  examples,  they  are  only  to  be  followed 
implicitly  so  far  as  the  circumstances  of  each  case  may  admit  (see  Bartlett 
V.  Gihhs,  1843,  at  p.  96).  As  to  schedules  used  in  conveyancing,  see 
Collecticms  of  Preeedents  in  Conveyancing,  and  Norton,  Interpretation  of 
Deeds. 

[Authorities. — Hardcastle  on  Statutes,  4th  ed.,  by  Craies ;  Maxwell, 
Interpretation  of  Statutes,  4th  ed.] 


t 


SCHOOL  147 

Scholarship. — A  foundation  for  the  support  of  a  student  at  a 
school  or  university  under  certain  regulations.  A  scholarship  is  included 
in  the  term  "educational  endowment"  within  the  meaning  of  the  Endowed 
Schools  Act,  1869,  and  schemes  may  therefore  be  framed  by  the  Charity 
Commissioners  (q.v.),  dealing  with  (among  other  endowments)  scholar- 
ships, except  those  founded  less  than  fifty  years  before  the  commencement 
of  that  Act,  those  forming  part  of  the  foundation  of  any  college  of 
Oxford  or  Cambridge  (other  than  those  restricted  to  particular  schools 
or  districts — see  as  to  this,  In  re  Meyricke  Fund,  1872,  L.  K.  7  Ch.  500), 
and  certain  others  specified  in  sec.  14  of  the  Act. 

The  mere  announcement  by  the  trustees  of  a  scholarship  that  an 
examination  for  the  same  will  be  held  does  not  amount  to  an  offer  to 
award  the  scholarship  to  the  candidate  who  obtains  the  highest  number 
of  marks  {Rooke  v.  Dawson,  1895,  64  L,  J.  Ch.  301).  Where,  therefore,  a 
scholarship  is  to  be  awarded  to  the  candidate  who  shall  pass  the  best 
examination  in  subjects  chosen  by  the  examiner  appointed  by  the  trustees 
of  the  scholarship,  the  trustees  are  justified  in  refusing  to  award  the  same 
to  the  candidate  who,  although  he  may  have  obtained  the  highest  number 
of  marks,  has  nevertheless  not,  according  to  the  report  of  the  examiner, 
passed  a  satisfactory  examination  {Rooke  v.  Daicson,  1895, 65  L.  J.  Ch.  31). 
An  action  by  a  candidate  claiming  such  a  scholarship  is  an  action  to 
enforce  the  trusts  of  a  charity,  and  cannot  be  brought  without  the 
certificate  of  the  Charity  Commissioners  under  sec.  17  of  the  Charitable 
Trusts  Act,  1853  {Rooke  v.  Dawson,  1895,  64  L.  J.  Ch.  301).  See 
Endowed  Schools. 

School. — Schools,  as  such,  have  no  special  legal  rights  or 
liabilities,  save  in  so  far  as  they  are  regarded  as  charitable  foundations, 
or  in  so  far  as  they  are  maintained  out  of  public  moneys.  An  endowed 
grammar  school  is  a  typical  instance  of  the  first,  and  a  public  elementary 
school  of  the  second  class  of  institutions  so  falling  within  a  special  sphere 
of  law.  See  the  articles  Education  (for  the  Elementary  Education 
Acts) ;  Endowed  Schools  ;  Evening  School  ;  Free  School  ;  Grammar 
School;  Industrial  School;  Poor  Law;  Public  School;  Reforma- 
tory; Science  and  Art  Department;  and  Technical  Instruction; 
also,  as  entitled  to  exemption  from  rates.  Ragged  School  and  Sunday 
School.  Secondary  schools  conducted  for  private  profit  are  eligible  for 
support  out  of  public  funds,  but  need  not  be  separately  noticed.  See 
Education  Act,  1902,  s.  2. 

School  Sites. — It  has  been  already  explained  in  the  article  on 
Charities,  Vol.  II.  p.  672,  that  gifts  for  the  maintenance  of  schools  are 
charitable,  and  that  certain  limited  exemptions  from  the  law  of  mort- 
main have  been  granted  by  the  legislature  in  favour  of  sites  for  schools 
{Vol.  II.  p.  676).  The  leading  provisions  under  this  head  of  the  School 
Sites  Acts  may  now  shortly  be  referred  to : — 

1.  By  the  School  Sites  Act,  1841,  4  &  5  Vict.  c.  38,  s.  2,  land  not 
exceeding  one  acre  may  be  conveyed  by  way  of  gift,  sale,  or  exchange  as 
a  site  for  a  school  for  the  education  of  poor  persons,  or  for  the  residence 
of  the  schoolmaster  or  schoolmistress,  or  otherwise  for  the  purposes  of 
the  education  of  such  poor  persons  in  religious  and  useful  knowledge. 
There  is  a  reverter  clause  in  the  Act  providing  that  the  premises  shall 
revert  to  the  donor's  estate  if  the  educational  purposes  fail.  Where  the 
school  is  disused  the  Court  will  direct  a  scheme  to  prevent  failure  of  the 
educational  purposes  (Caerphilly  case,  A.-G.  v.  Price,  1908,  72  J.  P.  208). 


148  SCHOOL  BOAED 

2.  Under  the  School  Sites  Act,  1844,  7  «&  8  Vict.  c.  37,  s.  3,  a  deed 
executed  under  the  last-mentioned  Act  without  any  valuable  considera- 
tion is  valid,  if  otherwise  lawful,  although  the  donor  die  within  twelve 
calendar  months  from  the  execution. 

3.  Under  the  School  Sites  Act,  1849,  all  persons,  being  absolute 
owners  or  tenants  in  tail  in  possession,  may  convey  not  exceeding  five 
acres  to  any  corporation,  sole  or  aggregate,  or  to  several  corporations 
sole,  or  to  any  trustees,  for  the  erection  of  school  buildings  for  the  educa- 
tion of  persons  intended  to  be  masters  or  mistresses  of  elementary 
schools  for  poor  persons. 

4.  By  15  &  16  Vict.  c.  49,  the  provisions  of  the  School  Sites  Acts,  1841 
to  1851,  together  with  the  Trustee  Appointment  Act,  1850, 13  &  14  Vict. 
c.  28,  are  extended  to  schools  or  colleges  for  the  religious  or  educational 
training  of  the  sons  of  yeomen  or  tradesmen  or  others,  or  for  the  theo- 
logical training  of  candidates  for  holy  orders,  partly  maintained  by 
charitable  aid  and  partly  self-supporting. 

5.  By  the  Elementary  Education  Act,  1870,  33  &  34  Vict.  c.  75,  the 
School  Sites  Acts  are  extended  to  School  Boards  (and  now  to  local  educa- 
tion authorities  under  the  Education  Act,  1902,  s.  5)  in  the  same  way  as 
if  they  were  trustees  or  managers  of  schools  within  the  meaning  of  those 
Acts.  See  further  Tudor's  Charitable  Trusts,  4th  ed,,  pp.  630  and  655. 
As  to  the  Mortmain  Act,  1888,  see  article  Charities,  Vol.  II.  p.  670. 
The  Mortmain  Acts  of  1888  and  1891,  so  far  as  they  require  the  sale  of 
land  left  to  a  charity  within  a  year  of  the  testator's  death  no  longer 
apply  to  an  assurance  of  land  for  a  schoolhouse  for  an  elementary 
school  (Education  Act,  1902,  s.  23  (5)). 

Sec.  62  of  the  Charitable  Trusts  Act,  1853,  16  &  17  Vict.  c.  137, 
exempting  certain  charities  from  the  jurisdiction  of  the  Charity  Com- 
missioners (see  article  Charity  Commission,  Vol.  II.  p.  690),  contains  a 
proviso  that  the  exemption  shall  not  extend  to  "  any  cathedral,  collegiate, 
chapter,  or  other  schools."  It  has  recently  been  lield  that  the  ejusdem 
generis  rule  of  interpretation  applies  to  the  words  "  other  schools,"  so 
that  there  is  no  general  reservation  to  the  jurisdiction  of  the  Charity 
Commissioners  of  school  endowments  which  would  be  otherwise  exempt 
under  this  section,  but  only  of  schools  of  the  same  kind  as  those  specified, 
viz.,  "  any  schools  connected  with  ecclesiastical  foundations  not  properly 
designated  as  cathedral,  collegiate,  or  chapter  schools  "  {In  re  Stockport 
Ragged,  Industrial,  and  Reformatory  Schools,  per  Stirling,  J.,  [1898]  1  Ch. 
616 ;  [1898]  2  Ch.  687). 

See  further.  Schoolmaster  and  Pupil. 

School  Board.— By  the  Education  Act,  1902,  2  Edw.  vn. 
c.  42,  "  The  local  education  authority  shall  throughout  their  area  have 
the  powers  and  duties  of  a  school  board  and  school  attendance  committee 
under  the  Elementary  Education  Acts,  1870  to  1900 — and  school  hoards 
and  school  attendance  committees  shall  he  abolished."  See  article  Educa- 
tion, Vol.  VI.  pp.  59  et  seq.,  as  to  constitution,  election,  and  powers  of 
the  local  education  authorities  under  the  Education  Act,  1902. 

Schoolmaster  and  Pupil. — The  authority  of  a  school- 
master over  his  pupil  is  derived  from,  and  is  similar  to,  that  of  a  parent 
over  his  child.  A  parent  may  "  delegate  part  of  his  parental  authority 
during  his  life,  to  the  tutor  or  schoolmaster  of  his  child :  who  is  then 
in  loco  parentis,  and  has  such  a  portion  of  the  power  of  the  parent  com- 


SCHOOLMASTER  AND  PUPIL  149 

mitted  to  his  charge,  namely,  that  of  restraint  and  correction,  as  may  be 
necessary  to  answer  the  purposes  for  which  he  is  employed  "  (Black.  Com., 
vol.  i.  453).  A  schoolmaster  has  the  right  to  inflict,  by  corporal  chastise- 
ment or  otherwise,  reasonable  punishment  for  any  breach  of  school 
discipline  or  other  misconduct  on  the  part  of  the  pupil  while  under  his 
charge  or  control.  There  is  no  particular  rule  as  to  the  nature  of  the 
punishment  which  may  be  inflicted,  provided  it  is  moderate  and  reason- 
able, and  not  out  of  proportion  to  the  offence.  In  Gardner  v,  Bygrave, 
1889,  53  J.  P.  743,  the  master  of  a  board  school  was  charged  with 
assaulting  a  pupil  by  caning  him  on  the  hand,  and  the  magistrate,  being 
of  opinion  that  caning  on  the  hand  was  attended  by  the  risk  of  serious 
injury  to  the  hand,  convicted  the  defendant,  though  the  punishment  was 
not  excessive,  and  there  w^as  no  evidence  of  any  serious  injury  having 
resulted  in  the  particular  case.  On  appeal,  it  was  held  that  the  reason 
given  by  the  magistrate  for  convicting  was  insufficient,  and  the  conviction 
was  quashed.  But  the  chastisement  must  be  moderate  and  reasonable. 
"  If  it  be  administered  for  the  gratification  of  passion  or  of  rage,  or  if  it 
be  immoderate  and  excessive  in  its  nature  or  degree,  or  if  it  be  protracted 
beyond  the  child's  powers  of  endurance,  or  with  an  instrument  unfitted 
for  the  purpose  and  calculated  to  produce  danger  to  life  or  limb ;  in  all 
such  cases  the  punishment  is  excessive,  and  the  violence  is  unlawful " 
{ijer  Cockburn,  C.J.,  in  R.  v.  Hopley,  1860,  2  F.  &  F.  202,  206).  In  the 
case  last  cited,  a  schoolmaster  who,  having  proposed  to  beat  a  pupil 
severely,  in  order  to  subdue  his  alleged  obstinacy,  and  having  obtained 
the  father's  assent  to  the  proposal,  beat  the  boy  for  more  than  two  hours 
with  a  thick  stick,  in  consequence  of  which  he  died,  was  convicted  of 
manslaughter. 

In  Cleai-y  v.  Booth,  [1893]  1  Q.  B.  465,  it  was  held  that  the  right  of  a 
schoolmaster  to  infiict  punishment  extends  to  cases  where  the  offence  is 
committed  outside  the  school  premises — at  all  events,  if  it  is  committed 
while  the  pupil  is  on  his  way  to  or  from  school.  The  headmaster  of  a 
school  may,  in  the  absence  of  agreement  to  the  contrary,  delegate  his 
right  to  chastise  a  pupil  for  breaches  of  school  discipline  to  a  prefect  or 
monitor  {In  re  Basingstoke  School,  1877, 41  J.  P.  118).  Assistant  teachers 
in  public  elementary  schools  have  authority  to  inflict  moderate  chastise- 
ment, and  the  fact  that  the  regulations  governing  the  school  forbid 
corporal  punishment  by  assistant- teachers,  does  not  of  itself  render  a 
teacher  who  has  disregarded  the  regulations  liable  in  an  action  for 
assault  {Mansel  v.  Oriffin,  [1908]  1  K.  B.  947).  A  statutory  recognition 
of  the  right  of  a  schoolmaster  to  inflict  corporal  punishment  on  his  pupil 
is  afforded  by  the  Prevention  of  Cruelty  to  Children  Act,  1904,  4  Edw. 
VII.  c.  15,  s.  28,  which  provides  that  nothing  in  the  Act  contained  shall 
be  construed  to  take  away  or  affect  the  right  of  any  parent,  teacher,  or 
other  person  having  the  lawful  control  or  charge  of  a  child,  to  administer 
punishment  to  such  child. 

It  is  incidental  to  the  authority  of  the  headmaster  of  a  school  to 
expel  a  pupil,  where  his  conduct  is  such  that  he  cannot  be  permitted 
to  remain  without  danger  to  the  school,  and,  generally  speaking,  every 
contract  by  which  a  schoolmaster  undertakes  the  education  of  a  child 
is  subject  to  an  implied  condition  that  the  child  may  be  expelled  for 
reasonable  cause.  But  the  power  of  expulsion  must  not  be  exercised 
wantonly  or  capriciously.  It  is  not  entirely  a  discretionary  power,  but 
can  only  be  exercised  on  reasonable  grounds,  such  as  the  commission  of 
some  serious  offence,  or  persistency  in  committing  breaches  of  discipline 


150  SCIENCE  AND  AKT  DEPARTMENT 

after  due  warning,  or  other  conduct  which  is  calculated  to  cause  serious 
injury  to  the  school  {Fitzgerald  v.  Northcote,  1865,  4  F.  «&  F.  656 ;  Hutt 
V.  Governors  of  Haileyhiry  College,  1888, 4  T.  L.  E.  623).  A  schoolmaster 
also  has  the  right  to  impose  reasonable  restraint  on  the  personal  liberty 
of  his  pupil,  either  for  the  purpose  of  preventing  misconduct  or  by  way 
of  punishment,  and,  subject  to  any  special  agreement,  this  right  is,  as  a 
general  rule,  a  discretionary  one  (see  and  compare  the  cases  last  cited). 
Where,  however,  the  master  of  a  board  school  detained  a  child  after 
school  hours  for  not  doing  lessons  at  home,  it  was  held  that  the  detention 
was  unlawful,  and  rendered  the  master  liable  to  be  convicted  of  assault, 
on  the  ground  that  the  Elementary  Education  Acts  did  not  authorise  the 
setting  of  home  lessons  to  children  attending  the  board  schools  {Huntei- 
V.  Johtismi,  1884,  13  Q.  B.  D.  225). 

Where  a  contract  for  the  education  of  a  child  provides  that  a  term's 
notice  shall  be  given  before  the  removal  of  the  child  from  the  school, 
and  that  in  default  of  such  notice  a  term's  fees  shall  be  paid,  the  school- 
master is  entitled,  in  the  event  of  the  removal  of  the  pupil  without  due 
notice,  to  recover  the  full  amount  of  the  fees  which  would  have  been 
payable  for  the  term  if  the  pupil  had  attended  in  accordance  with  the 
contract.  The  sum  so  agreed  to  be  paid  is  not  deemed  to  be  in  the 
nature  of  a  penalty,  and  there  is  nothing  unreasonable  in  such  a  pro- 
vision {Eardley  v.  Price,  1806,  2  Bos.  &  Pul.  N.  R  333 ;  9  R.  R  654 ; 
Lenssen  v.  Thornton,  1887,  3  T.  L.  R.  657).  So,  where  it  was  agreed  that 
the  fees  in  respect  of  each  term  should  be  paid  in  advance ;  and  upon  a 
memorandum  being  sent  of  the  fees  for  the  ensuing  term,  the  parent 
wrote  that  the  boy  could  not  return  on  the  first  day  of  the  term,  but 
that  he  would  do  so  on  the  following  Monday,  and  the  boy  never 
returned  to  the  school,  it  was  held  that  the  parent  was  liable  to  pay 
the  full  amount  of  the  fees  for  the  term,  though  it  was  a  boarding  school, 
and  a  considerable  portion  of  the  amount  charged  was  in  respect  of  the 
child's  board  (Jones  v.  Turner,  1891,  7  T.  L.  R  421).  But  if  the  agree- 
ment simply  provides  that  a  term's  notice  shall  be  given,  without 
specifying  the  amount  to  be  paid  in  lieu  of  notice,  and  the  pupil  is 
removed  without  notice,  the  schoolmaster  is  only  entitled  to  recover  the 
amount  of  the  actual  loss  incurred  in  consequence  of  the  breach  of  con- 
tract, and  not  necessarily  the  full  amount  which  would  have  been  pay- 
able for  the  term  (Dennian  v.  Winstanleij,  1887,  4  T.  L.  R.  127).  Where 
a  child,  during  the  whole  of  a  term,  is  unable  in  consequence  of  illness 
to  attend  school,  the  parent  is  not,  in  the  absence  of  express  agreement 
to  that  effect,  liable  to  pay  any  of  the  fees  for  such  term;  and  the 
absence  of  a  child  during  illness  is  not  a  breach  of  a  contract  by  the 
parent  not  to  remove  him  without  notice  {Simeon  v.  Watson,  1877, 
46  L.  J.  C.  R  679). 

A  schoolmaster  has  no  authority  to  cause  his  pupil  to  be  supplied 
with  wearing  apparel  without  the  sanction,  express  or  implied,  of  the 
parent  or  guardian.  If  he  observes  that  the  pupil  is  in  want  of  such 
articles,  it  is  his  duty  to  communicate  with  the  parent  or  guardian,  and 
not  to  furnish  them  without  authority  {Clements  v.  Williams,  1837, 
8  Car.  &  R  58). 

[^Authorities. — Williams  on  Education  ;  Disney  on  the  Laio  Relating 
to  Schoolmasters.'] 

Science  and  Art  Department.— One  of  the  two  estab- 
lishments which  originally  constituted  the  Education  Department  of  the 


SCIENTIFIC  AND  LITERAEY  SOCIETIES  151 

Lords  of  the  Committee  of  the  Privy  Council  on  Education.  It  had  its 
origin  in  the  "  Council  of  the  Government  School  of  Design  "  established 
in  1837,  from  which  year  till  the  institution  of  the  Education  Depart- 
ment in  1856  this  branch  was  under  the  control  of  the  Board  of  Trade. 
The  Department  used  to  administer  the  money  annually  voted  by 
Parliament  for  instruction  in  science  and  art  in  the  United  Kingdom 
by  means  of  grants  in  aid,  and  though  nominally  a  branch  of  the 
Education  Department  was  practically  distinct  for  all  administrative 
purposes.  Unity  of  control  came  in  1900  as  a  result  of  the  Board  of 
Education  Act,  1899,  which  substitutes  one  Board  for  all  educational 
purposes.  The  vote  was  applied  to  the  maintenance  of  the  Museums 
of  Science  and  Art  at  South  Kensington,  in  Edinburgh  and  Dublin,  of 
the  Royal  College  of  Science  and  the  Royal  College  of  Art  at  South 
Kensington,  the  Geological  Survey  of  the  United  Kingdom,  the  Geolo- 
gical Museum,  as  well  as  in  grants  to  schools  and  classes ;  but  all  these 
expenses  are  now  met  by  the  annual  Education  Vote.     See  Education. 

Scienter. — See  Animals;  Dogs. 

Scientific   and    Literary    Societies.— By  several 

statutes  passed  during  the  last  reign,  the  legislature  has  sought  to 
encourage  institutions  established  for  the  promotion  of  science,  litera- 
ture, and  the  fine  arts.  By  the  Literary  and  Scientific  Societies  Act, 
1854,  such  societies,  as  well  as  various  others  of  a  kindred  nature,  are 
given  extensive  powers  of  self-government,  as  well  as  special  facilities 
for  acquiring  sites  and  buildings.  Persons  having  the  beneficial  interest 
in  land  are  empowered  by  the  Act  to  grant  portions  of  the  same,  not 
exceeding,  in  any  one  case,  one  acre,  as  sites  for  such  institutions  (ss.  1-3, 
5-13);  and  deeds  whereby  land  is  so  gifted  are  declared  to  be  valid  if 
otherwise  lawful,  notwithstanding  the  death  of  the  grantors  within 
twelve  calendar  months  from  the  execution  thereof  (s.  14).  The 
governing  bodies  of  such  institutions  (who  are  defined  by  sec.  32)  are 
given  certain  powers  of  sale  and  exchange  (s.  18).  Provision  is  also 
made  by  the  Act  as  to  suits  by  and  against  such  institutions ;  an  incor- 
porated institution  not  entitled  to  sue  and  be  sued  by  any  corporate 
name,  and  every  unincorporated  institution,  being  entitled  to  sue  and 
made  liable  to  be  sued  in  the  name  of  the  president,  chairman,  principal 
secretary  or  clerk  as  shall  be  determined  by  the  rules  of  the  institution, 
and  in  default  of  such  determination  in  the  name  of  such  person  as  shall 
be  appointed  by  the  governing  body  for  the  occasion,  and  if  no  person  is 
so  appointed  the  president  or  chairman  may  be  sued  (s.  21).  A  judgment 
recovered  against  an  officer  of  the  institution  is  enforced  by  execution 
against  the  property  of  the  institution  (s.  23).  Power  is  also  given  for 
the  making  of  by-laws  (s.  24),  the  suing  of  members  whose  subscriptions 
are  in  arrear  (s.  25),  the  punishment  of  members  guilty  of  offences  in 
relation  to  the  property  of  the  institution  (s.  26),  the  alteration,  exten- 
sion, or  abridgment  of  their  purposes,  if  agreed  to  and  confirmed  by  the 
votes  of  three-fifths  of  the  members  present  at  two  meetings  held  for 
the  purpose  of  passing  and  confirming  the  necessary  resolutions  (s.  27), 
but  the  operation  of  such  alteration  may  be  suspended  by  the  Board  of 
Trade,  if  applied  to  by  two-fifths  of  the  members,  and  it  is  shown  that 
the  proposals  are  calculated  to  prove  injurious  (s.  28).  Any  number  not 
less  than  three-fifths  of  the  members  of  an  institution  may  determine 
that  it  shall  be  dissolved,  and  thereupon  it  shall  be  dissolved  either 


152  SCILICET 

forthwith  or  at  the  time  agreed  upon  (s.  29) ;  if  any  surplus  remains 
after  satisfaction  of  the  debts  and  liabilities  of  an  institution  so  dissolved 
(except  an  institution  founded  by  the  contributions  of  shareholders  in 
the  nature  of  a  joint-stock  company — see  as  to  this  exception  the  two 
cases  of  In  re  Russell  Institution,  [1898]  2  Ch.  72,  and  In  re  Jones, 
Clegg  v.  Ellison,  [1898]  2  Ch.  83)  it  must  be  given  to  some  other  institu- 
tion to  be  named  by  the  members  at  the  time  of  the  dissolution,  or,  in 
default  thereof,  by  the  judge  of  the  County  Court  of  the  district  in  which 
the  principal  building  of  the  institution  is  situated  (s.  30). 

By  6  &  7  Vict.  c.  36,  the  buildings  of  a  society  "instituted  for 
purposes  of  science,  literature,  or  the  fine  arts  exclusively,"  and  occupied 
by  it  for  the  transaction  of  its  business  and  for  carrying  into  effect  its 
purposes,  are  exempt  from  rates  if  certain  conditions  are  fulfilled.  The 
society  (1)  must  be  supported  wholly  or  in  part  by  annual  voluntary 
contributions — a  society  which  returns  to  every  contributor  the  equiva- 
lent of  his  contributions  in  money's  worth  is  not  "  supported  by  volun- 
tary contributions  "  within  the  meaning  of  the  Act  {Savoy  Overseers  v. 
Art  Z/TitoTK/XoTj^oTi,  [1896]  App.Cas.  296);  (2)  must  expressly  prohibit 
the  making  of  any  dividend  or  bonus  in  money  to  its  members  {R.  v.  Jones, 
1846,  8  Q.  B.  719);  and  (3)  must  obtain  a  certificate  from  the  Registrar 
of  Friendly  Societies  that  it  is  entitled  to  the  benefits  of  the  Act 
(ss.  1,  2).  To  come  within  the  exemption  a  society  must  be  one  insti- 
tuted exclusively  for  one  or  other  of  the  purposes  named;  therefore 
a  religious  society  is  not  entitled  to  exemption  {R.  v.  Jones,  siipra ;  R.  v. 
Baptist  Missionary  Society,  1849, 10  Q.  B.  884) ;  nor  a  society  whose  main 
purpose  is  to  provide  a  news-room  {Russell  Institution  v.  St.  Giles  and 
St.  George,  Bloomsbury,  1854,  23  L.  J.  M.  C.  65).  (See  the  numerous 
cases  on  this  subject  collected  in  Mayer,  Law  of  Rating,  pp.  81  et  seq., 
and  Stroud,  Jiid.  Diet,  s.v.  "  Science.") 

Similarly,  under  the  Income  Tax  Act,  1842  (s.  61,  No.  vi.),  buildings, 
the  property  of  any  literary  or  scientific  institution,  used  solely  for  the 
purposes  of  such  institution  and  in  which  no  payment  is  made  or 
demanded  for  any  instruction  there  afforded  by  lectures  or  otherwise, 
are  exempt  from  taxation  if  they  are  not  occupied  by  any  officer  of  the 
institution  or  by  any  person  paying  rent  for  the  same.  A  free  public 
library,  used  solely  as  such,  established  by  and  vested  in  a  municipal 
corporation  under  the  Public  Libraries  Acts  is  a  "  literary  institution  " 
within  the  meaning  of  this  section  and  exempt  from  taxation  {Manchester 
{Mayor  of)  v.  M'Adam,  1896,  65  L.  J.  Q.  B.  672 ;  Musgrave  v.  Dundee 
Magistrates,  1897,  24  Court  of  Sess.  Cas.  (4th  series),  930). 

Under  the  Customs  and  Inland  Eevenue  Act,  1885,  a  society  whose 
property  or  the  income  or  profits  thereof  is  legally  appropriated  for  the 
promotion  of,  inter  alia,  literature,  science,  or  the  fine  arts  is  exempt 
from  the  duty  imposed  by  that  statute  on  the  property  of  corporate  and 
unincorporate  bodies  (s.  11,  subs.  (3)).  The  Institute  of  Civil  Engineers 
has  been  held  to  be  exempt  under  this  sub-section  {Inland  Revenue  Com- 
missioners V.  Forrest,  1890,  15  App.  Cas.  334). 

Sci I  icet . — To  wit ;  that  is  to  say.  It  is  used  to  particularise  that 
which  has  been  stated  in  general  terms,  or  to  distribute  that  which  is  in 
gross,  or  to  explain  that  which  is  doubtful  or  obscure  (see  Stukeley  v. 
Butler,  1615,  Hob.  171,  172). 

Scilly  Isla.nds. — Geographically,  these  islands  form  part  of 


SCIRE  FACIAS  153 

the  county  of  Cornwall.  They  possess,  however,  a  County  Council  and 
local  authorities  of  their  own ;  for  the  Local  Government  Act,  1888,  51 
&  52  Vict.  c.  41,  s.  49  (1),  gave  the  Local  Government  Board  power  to 
make  regulations  by  way  of  provisional  order  to  apply  that  Act  to  the 
Scilly  Islands  by  the  establishment  of  separate  councils  and  local 
authorities  or  otherwise.  Apart  from  such  Provisional  Order,  the 
County  Council  of  Cornwall  has  no  greater  powers  or  duties  in  the 
Scilly  Islands  than  the  Quarter  Sessions  of  Cornwall  had  exercised  prior 
to  the  Act  (s.  49  (3)).  See  also  the  Local  Government  Act,  1894,  56  & 
57  Vict.  c.  73,  s.  74. 

The  difficulty  experienced  in  obtaining  persons  with  the  necessary 
property  qualification  to  serve  as  justices  of  the  peace,  led  to  the  passing 
of  the  4  &  5  Will.  iv.  c.  43,  sec.  1  of  which  Act  provides  that  persons 
duly  appointed  may  act  as  justices,  though  not  qualified.  All  acts  done 
by  persons  so  appointed  in  regard  to  felonies,  misdemeanors,  etc.,  in  the 
islands,  are  to  be  valid  and  effectual  in  law  (s.  2). 

The  Poor  Removal  Act,  1845,  8  &  9  Vict.  c.  117,  makes  provision  for 
the  removal  to  their  own  islands  of  natives  of  the  Scilly  Islands  becoming 
chargeable  to  any  parish  in  England,  on  complaint  to  a  justice  or  justices 
by  the  guardians  or  overseers  of  such  parish.  No  summons  or  warrant 
is  now  required  to  be  served  on  the  pauper  (Poor  Removal  Act,  1847, 
10  &  11  Vict.  c.  33,  8.  1). 

Scire  Facias. — A  writ  founded  upon  some  matter  of  record,  as 
judgments,  recognisances,  and  letters  patent,  either  to  enforce  them,  or, 
as  in  the  case  of  letters  patent,  such  as  charters,  to  set  them  aside.  It 
derives  its  name  from  the  operative  words  in  the  writ,  "  sdre  facias,  etc.," 
and  is  a  warning  to  a  defendant  to  appear  and  plead  in  bar  of  execution, 
or  show  any  cause,  if  he  can,  why  execution  should  not  issue  against  him 
on  the  judgment  or  record,  or  why  the  record  should  not  be  annulled 
and  vacated. 

It  is  in  some  cases  a  judicial  writ,  as  when  required  against  some 
person  not  a  party  to  the  judgment,  or  upon  a  suggestion  of  further 
breaches  after  judgment  in  an  action  upon  a  bond ;  for  in  such  cases 
it  is  but  a  quasi-continuation  of  a  former  suit,  and  it  is  then  properly 
called  a  writ  of  execution.  In  other  cases,  such  as  to  repeal  letters 
patent,  etc.,  or  to  enforce  recognisances,  it  is  considered  an  original  writ. 

In  all  cases  it  is  in  law  considered  an  action,  because  it  may  be 
pleaded  to ;  and  consequently,  since  the  Judicature  Acts,  there  being  no 
mention  made  of  it  in  the  rules  thereunder,  other  than  in  the  Crown 
Office  Rules,  which  abolished  it  for  the  purpose  of  enforcing  recognisances 
on  the  Crown  side  of  the  King's  Bench  Division  (C.  0.  R,  1886,  r.  127; 
see  now  C.  0.  R.,  1906,  r.  116),  doubts  have  been  entertained  as  to  whether 
the  action  of  scire  facias  should  not  now  be  commenced  by  writ  of  summons 
pursuant  to  R.  S.  C,  Order  2,  r.  1 ;  but  the  better  opinion  seems  to  be  that 
for  some  purposes  the  proceeding  by  writ  of  scire  facias  still  remains,  and 
instances  of  its  use  may  be  cited  (see  Portal  v.  Emmcns,  1876, 1  C.  P.  D.  201, 
644 ;  Kipling  v.  Todd,  1878,  3  C.  P.  D.  350),  though  in  both  cases  it  would 
seem  probable  that  the  proceedings  related  back  to  judgments  obtained 
before  the  coming  into  operation  of  the  Judicature  Acts,  and  in  each 
case  the  proceeding  was  against  an  individual  member  of  a  joint-stock 
company  against  which  an  unsatisfied  judgment  had  been  obtained,  who 
could  now  be  proceeded  against  under  Order  23,  R.  S.  C,  Order  42,  r.  23. 
(See  infra.) 


154  SCIRE  FACIAS 

Before  the  Judicature  Acts  the  writ  of  scire  facias  was  used  for  a 
variety  of  purposes  for  which  it  has  been  rendered  unnecessary  by  the 
more  modern  procedure,  although  not  expressly  abolished  except  in  the 
case  above  mentioned.  Although  some  obscurity  may  prevail  with 
regard  to  certain  of  the  matters  enumerated  below,  it  may  be  said  that 
the  writ  of  sdre  facias  is  still  available  for  the  following  purposes : — 

(1)  To  repeal  letters  patent  or  charters,  etc.  {Icttei's  'patent  for 
inventions  are  now  repealed  under  sec.  26  of  the  Patents,  Designs  and 
Trade  Marks  Act,  1883,  46  &  47  Vict.  c.  57,  withmtt  scire  facias).  See 
Patents.  (2)  To  enforce  receivers'  recognisances  (see  Kerr  on  Receivers, 
5th  ed.,  252-3  ;  Daniells,  Ch.  Pr.,  7th  ed.,  1450).  (3)  Upon  a  suggestion 
of  further  breaches  after  judgment  in  an  action  on  a  bond  within 
8  &  9  WiU.  III.  c.  11  (Chit.  Arch.  Pr.,  14th  ed.,  p.  1285).  (4)  To  enforce 
judgments  and  orders  against  the  property  of  a  convict  under  the 
Forfeiture  Act,  1870,  33  &  34  Vict.  c.  23,  s.  27.  To  the  above  may 
be  added  some  other  matters  with  regard  to  which  it  would  seem 
that  the  writ  of  scire  facias  may  still  be  used,  though  other  and 
probably  more  convenient  modes  of  procedure  are  now  available  {a) 
against  the  cognisors  on  some  recognisances,  e.g.  receivers  (see  above), 
ih)  against  members  of  a  joint-stock  company  or  other  body,  upon  a 
judgment  recorded  against  the  public  officer  or  other  person  sued  as 
representing  such  company  or  body,  or  against  such  company  or  body 
itself.  {This  object  is  attainable  under  P.  S.  C,  Order  42,  r.  43.)  (c)  For 
restitution  after  reversal  by  a  Court  of  Appeal.  (This  is  now  visually 
attained  by  an  order  of  the  Appellate  Court.)  (d)  For  the  recovery  of 
land  taken  under  a  writ  of  elegit,  after  the  creditor  shall  have  fully 
satisfied  his  judgment  out  of  the  extended  value  of  the  land,  or  before 
the  judgment  is  so  satisfied,  upon  tendering  to  the  creditor  in  Court 
whatever  may  be  wanting  to  satisfy  the  judgment  (Chit.  Arch.  Pr.,  14th 
ed.,  p.  887,  where  other  modes  are  also  p)oinied  out). 

All  these  matters — (a),  (b),  (c),  and  {d),  as  well  as  upon  a  sugges- 
tion of  further  breaches — are  included  in  sec.  132  of  the  Common 
Law  Procedure  Act,  1852,  which  provides  that  the  procedure  with 
regard  to  such  writs  of  scire  facias  shall  be  the  same  as  upon  writs  of 
revivor,  and  remains  unrepealed  in  respect  thereto,  although  repealed 
as  to  some  other  matters.  Writs  of  revivor  are  now  obsolete;  but 
for  the  practice  thereon,  see  Chit.  Arch.  Pr.,  12th  ed.,  1133  et  seq. 

The  scire  facias  must  be  sued  out  of  the  Court  in  which  the  record 
is.  In  some  cases  it  is  granted  partly  upon  the  record  and  partly  upon 
a  suggestion,  without  which  no  proceeding  could  be  had  upon  the  record 
(2  Inst.,  470,  679). 

When  the  writ  issues  by  way  of  execution  leave  of  the  Court  must 
first  be  obtained  for  that  purpose  upon  motion  (see  for  an  instance 
Portal  V.  JEmmens,  supra),  but  if  to  repeal  letters  patent  or  a  charter 
a  fiat  of  the  Attorney-General  must  first  be  obtained  (note  4  to  Undcr- 
hill  V.  Devereux,  2  W.  Saund.  12n.,  and  see  Eastern  Archipelago  Com- 
pany V.  The  Queen,  1853,  2  E.  &  B.  856).  To  put  a  recognisance  in 
suit  an  order  for  that  purpose  must  first  be  obtained.  For  the  latter 
purposes  the  writ  now  issues  from  the  Crown  Office  (formerly  it  issued 
from  the  Petty  Bag  in  Chancery)  (see  Petty  Bag  Office  and  Crown 
Office). 

The  procedure  and  pleadings,  which  latter  are  still  in  the  same  form 
as  before  the  Common  Law  Procedure  Acts,  1852-4,  are  regulated  by 
12  &  13  Vict.  c.  109,  ss.  29-31,  and  General  Rules  and  Orders  of  the 


SCIRE  FACIAS  FOR  THE  CROWN  155 

High  Court  of  Chancery  on  the  Common  Law  side,  December  29, 
1848,  18  L.  J.  Eq.  503. 

[Authorities. — Foster  on  Scii-e  Facias;  Daniell's  Ch.  Pr.,  Vth  ed., 
pp.  1450  et  seq.;  Chit.  Arch.  Fr.,  14th  ed.,  pp.  1285  et  acq.;  and  see 
notes  to  Saunders'  Rep.  by  Sir  E.  V.  Williams,  Jeffreson  v.  Morton,  vol. 
ii  pp.  12  et  seq. ;   Underhill  v.  Devereux,  vol.  ii.  pp.  237  et  seq.'\ 

Scire  Facias  for  the  Crown. — A  writ  of  scire  facias 

issues  for  the  Crown  before  execution  can  be  had  for  any  forfeiture 
where  a  debt  or  duty  appears  by  matter  of  record  to  be  owing  to  the 
Crown  as  a  debt  secured  by  bond,  special  bail  or  recognisance,  or  for 
debt  due  on  inquisition  held  under  writ  of  extent  {q.v.),  or  diem  clausit 
extremum  (q.v.).  But  if  the  debt  be  in  danger,  either  by  the  insolvency 
of  the  debtor  or  other  cause,  the  Crown  may  resort  to  the  more  summary 
proceeding  by  extent  upon  an  affidavit  showing  that  the  debt  is  in  danger 
of  being  lost.  So,  too,  the  extent  issues  without  scire  facias  if  the  record 
be  in  the  nature  of  a  judgment. 

The  modern  writ  of  scire  facias  which  takes  the  place  of  the  writ  of 
scire  facias  quare  executionem  Twn  is  a  scire  facias  in  name  only,  as  instead 
of  being  directed  to  the  sheriff,  requiring  him  to  make  known  to  the 
debtor  to  appear  and  show  cause  why  execution  should  not  go,  is  directed 
to  the  party  himself  requiring  him  to  appear  within  fourteen  days  from 
the  service  of  writ,  and  is  in  other  respects  much  in  the  form  of  an 
ordinary  writ  of  summons  in  an  action.  Forms  of  the  writ  are  pro- 
vided in  Sched.  A  to  Rules  on  the  Revenue  side  of  the  Court  of  Exchequer 
of  June  22,  1860  {Annual  Fradice,  vol.  ii.).  The  writ  issues  from  the 
King's  Remembrancer's  Department  of  the  Central  Office  wherein  all 
the  business  relating  to  the  Revenue  side  of  the  Exchequer  is  carried 
on,  and  issues,  as  of  course,  except  in  the  case  of  redemption  of  land 
tax,  when  the  fiat  of  a  judge  is  required.  When  upon  a  bond  the  bond 
must  first  be  deposited  in  the  King's  Remembrancer's  Office. 

By  rule  42  of  the  above-mentioned  Revenue  Rules  the  writ  remains 
in  force  six  calendar  months  from  the  date  thereof,  but  may  be  renewed 
as  therein  provided.  The  service  where  practical  must  be  personal,  but 
the  order  of  a  judge  may  be  obtained  under  special  circumstances,  on 
affidavit,  to  dispense  with  personal  service,  and  to  proceed  as  on  the 
Common  Law  side  of  the  Court  upon  writ  of  summons. 

By  rule  43  an  appearance  must  be  entered  in  the  King's  Remem- 
brancer's Department  in  fourteen  days  from  the  day  of  service. 

By  rule  44,  if  the]  defendant  appears  to  the  writ,  in  due  time  he 
must  plead  thereto  within  fourteen  days  after  appearance  entered, 
otherwise  judgment. 

By  rule  45,  if  the  defendant  does  not  appear  according  to  the 
exigency  of  the  writ,  on  filing  the  writ,  and  an  affidavit  of  service,  or 
the  order  of  the  judge  to  proceed,  judgment  may  be  signed  and  execution 
issued  in  fourteen  days  from  the  date  of  signing  the  judgment. 

By  rule  46  the  defendant  may  appear  at  any  time  before  judgment 
actually  signed,  but  if  he  does  so  after  the  ordinary  time  for  appearance, 
he,  or  his  solicitor,  in  case  he  appears  by  solicitor,  must  in  such  cases 
give  notice  to  the  solicitor  of  the  department  issuing  the  writ,  that  he 
has  done  so,  and  plead  to  the  writ  within  four  days  from  the  date  of  his 
appearance. 

By  rule  47  the  scire  facias  is  in  all  cases  to  be  filed  before  judgment 
can  be  signed. 


156  SCOLD 

The  jurisdiction  of  the  old  Court  of  Exchequer  as  a  Court  of  Revenue 
as  well  as  a  Common  Law  Court  is  merged  into  and  forms  part  of  the 
jurisdiction  of  the  King's  Bench  Division  of  the  High  Court  of  Justice 
(see  Supreme  Court),  but  inasmuch  as  the  proceedings  on  the  Revenue 
side  of  the  King's  Bench  Division  are  excepted  from  the  operation  of 
the  Rules  of  the  Supreme  Court,  1883,  by  Order  68,  r.  1,  except  so 
far  as  certain  of  the  rules  are  by  rule  2  applied  as  far  as  they  are  appli- 
cable, the  pleadings  and  practice  upon  these  Crown  proceedings  remain 
much  as  they  were  prior  to  the  passing  of  the  Judicature  Acts.  Should 
an  issue  be  joined  upon  a  writ  of  scire  facias  it  would  be  entered  for 
trial  with  the  common-law  actions  either  at  the  sittings  of  the  High 
Court  in  London  or  Middlesex,  or  the  assizes,  according  to  the  place  of 
venue,  which,  however,  it  has  been  usual  for  the  Attorney-General  to 
fix  in  Middlesex.  Provision  has  been  made  by  the  Queen's  Remem- 
brancer's Act,  1859,  22  &  23  Vict.  c.  21,  s.  17,  for  the  trial  of  suits  and 
proceedings  pending  on  the  Revenue  side  of  the  Court  of  Exchequer  at 
the  assizes  without  the  issue  of  a  commission  from  the  Revenue  side 
for  that  purpose.  Section  24  of  the  same  Act  provides  for  the  exempli- 
fication of  the  record  of  a  debt  due  to  His  Majesty  into  Scotland  or 
Ireland  when  the  party  liable  resides  in  either  of  those  countries,  in 
order  to  the  recovery  of  the  debt  in  that  part  of  the  kingdom  in  which 
the  debtor  resides.  And  sec.  21  makes  provision  for  the  payment  of  the 
costs  between  the  Crown  and  the  subject  on  the  same  principles  as 
between  subject  and  subject.  After  trial  and  verdict  the  judgment 
must  be  entered  up  much  in  the  same  manner  as  in  an  ordinary  action 
except  that  it  must  be  entered  in  the  King's  Remembrancer's  Depart- 
ment. It  may,  however,  be  added  that  proceedings  to  issue  and  judg- 
ment but  rarely  occur,  and  probably  there  is  no  such  instance  since  the 
Judicature  Acts  have  been  in  operation. 

[Aitthorities. — Foster  on  Scire  Facias ;  Manning's  Exch.  Prac. ;  Price's 
Exch.  Prac] 

Scold  {communis  rixatrix). — A  common  scold,  if  a  female,  is  at 
common  law  indictable  as  a  public  nuisance  (Hawk.  P.  C,  bk.  i.  c.  75, 
s.  14 ;  1  Russ.  Cr.,  6th  ed.,  752).  The  offence  was  cognisable  by  Courts 
Leet,  and  since  the  disappearance  of  those  Courts  is  not  prosecuted. 

The  punishment  was  to  put  the  scold  on  to  the  cucking-stool,  and 
also  to  put  on  her  the  branks  or  scold's  bridle  (2  Pike,  Hist.  Or.,  84). 

The  cucking-stool  was  let  down  into  a  pond  or  river,  with  the 
offender  in  it,  from  a  frame  called  the  trebucket,  or  tumbril  (5  Seld. 
Soc.  Pub.  53 ;  and  see  Murray,  Hist.  Diet.  Eng.  Lang.,  s.vv.  "  Cuck," 
"  Cucking-stool "). 

Scotal,  Scotale,  or  Scot hal a.— Scotales  were  "abuses 
put  upon  the  King's  people  by  his  officers,  who  invited  them  to  drink 
ale,  and  then  made  a  collection,  to  the  end  that  they  should  not  vex  or 
inform  against  them  for  the  crimes  they  had  committed  or  should 
commit "  (Brady,  Boroughs,  App.  13).  Bishop  Stubbs  {Constitutional 
History,  vol.  i.  628)  says  that  the  derivation  of  the  word  as  well  as  the 
nature  of  the  exaction  it  denoted  are  obscure,  but  that  it  was  an  illegal 
exaction  by  officers  for  their  own  benefit.  The  making  of  scotales  by 
foresters  and  others  was  expressly  forbidden  by  the  Charter  of  the 
Forest. 


SCOTLAND  157 

Scot  and  Lot. — Scot  and  lot  men  were  those  persons  who  paid 
scot  and  bore  lot  in  a  borough,  in  return  for  enjoying  membership  of 
a  gild  merchant  (1  Pollock  and  Maitland,  Hist.  Eng.  Law,  647). 

The  obligation  meant  liability  to  share  in  assessments  or  charges 
falling  on  the  borough.  The  evidences  in  early  records  as  to  the  nature 
of  the  duty  are  collected  in  Gross.,  GUd  Merchant,  i.  53-59,  and  do  not 
support  the  theory  held  by  some  that  bearing  lot  meant  eligibility  for 
municipal  office. 

The  term  has  disappeared  from  modern  municipal  government,  except 
that  it  is  used  in  25  Geo.  ii.  c.  36,  s.  5,  "  which  empowers  inhabitants 
of  a  parish  or  place  paying  scot  and  bearing  lot  therein  "  to  require  the 
constable  of  the  parish  to  prosecute  disorderly  houses.  In  this  Act  it 
is  read  as  meaning  inhabitant  ratepayers. 

Scotland. — The  laws  and  customs  of  Scotland  have,  in  their 
sources  and  tendencies,  so  much  in  common  with  those  of  England,  that 
it  may  be  sufficient,  in  a  work  primarily  intended  for  English  lawyers, 
to  describe  briefly  the  salient  points  of  difference. 

Both  systems  have  sources  in  the  customs  of  land  tenure  which,  in 
the  early  part  of  the  twelfth  century,  appear  to  have  been  similar,  in 
the  law-abiding  parts  of  Scotland,  to  the  customs  prevalent  in  England. 
The  laws  and  customs  of  the  principal  Scotch  burghs,  preserved  in  an 
authentic  record  of  the  twelfth  century,  were  similar  in  character  to 
those  preserved  in  contemporaneous  records  of  some  of  the  oldest  English 
corporations ;  and  in  both  countries  these  customs  have  largely  influenced 
the  general  law  relating  to  personal  property.  Both  systems  have  been 
profoundly  imbued  with  the  learning  of  the  civil  law,  or  Roman  law  as 
revised  by  mediajval  study.  In  the  English  Courts  the  maxims  of  the 
civilians  were  quoted  to  confute  the  Canonists.  In  the  Scotch  Courts 
they  were  cited  up  to  a  late  period,  to  supplement  the  dearth  of  native 
precedents. 

On  the  other  hand,  there  are  many  sources  of  divergence. 

Some  of  the  characteristic  doctrines  of  the  Canonists — who  were 
anathema  to  the  Courts  of  common  law  in  England — have  survived  in 
Scotch  law :  notably  the  doctrine  that  a  promise  in  writing  is  binding, 
apart  from  any  question  of  consideration.  The  division  of  personal 
property  according  to  an  early  custom  of  the  burghs — by  which  the 
shares  of  the  wife  and  children  were  protected  from  the  pious  benevo- 
lences of  a  deathbed — remains  to  this  day  the  general  law  of  moveable 
succession  in  Scotland.  These  rights,  which  were  equally  protected  in 
England  in  the  time  of  Henry  ii.,  disappeared  in  England  (as  explained 
by  Blackstone)  by  imperceptible  degrees,  until  the  last  traces  of  them, 
surviving  in  local  customs,  were  abolished  by  various  statutes. 

Another  source  of  divergence  arises  from  the  comparatively  late 
introduction,  in  Scotland,  of  a  settled  Supreme  Court  of  Civil  Jurisdic- 
tion. It  is  not  until  the  institution,  in  1537,  of  the  College  of  Justice, 
and  the  Court  of  Session,  as  forming  part  of  it,  that  settled  forms  of 
procedure  can  be  said  to  have  been  established,  or  judicial  decisions 
treated  as  binding  precedents.  Down  to  that  time,  the  main  stream  of 
litigation  had  flowed  into  the  Courts  of  the  judges  ordinary  (sheriffs, 
barons,  or  bailies  of  burghs),  and  such  appeals,  or  "  falsing  of  dooms,"  as. 
were  competent,  came  before  Courts  variously  constituted,  according  to 
the  shifting  arrangements  of  successive  Acts  of  Parliament.  Of  sub- 
stantive law,  what  was  lacking  appears  to  have  been  to  some  extent 


158  SCOTLAND 

supplied  by  "  buiks  of  the  law,"  consisting  mainly  of  garbled  copies  of 
Glanville's  treatise  De  Legihcs,  But  there  is  nothing  to  show  that  these 
so-called  "  buiks  of  the  law  "  were  treated  as  authoritative. 

In  the  meantime  the  King's  Courts  in  England  had,  for  more  than 
three  centuries,  continued  to  record  precedent  upon  precedent.  The 
English  common  law  had  obtained  the  advantage  of  certainty — but  the 
Courts,  fettered  by  the  weight  of  their  own  precedents,  left  a  large  portion 
of  civil  justice  to  be  dealt  with  by  so-called  Courts  of  equity.  The 
Scotch  law  at  the  time  of  the  institution  of  the  Court  of  Session  was 
undeveloped.  But  the  Court  of  Session,  with  statutory  powers  "  to 
minister  justice  equally  to  all  persons  in  such  causes  as  shall  happen  to 
come  before  them,"  enjoyed  an  elastic  jurisdiction  ;  resulting  in  a  system 
of  law  and  procedure  from  which  English  law  reformers — leaders  of  the 
bar  educated  in  Scotch  law  by  practice  in  Scotch  appeals — have,  within 
living  memory,  borrowed  much. 

In  the  divergence  of  Scotch  and  English  law,  besides  the  differences 
in  the  judicial  constitution,  must  be  taken  into  account  the  diverse 
history  in  statutory  enactment.  The  divergence  in  formal  conveyancing 
begins  with  the  Statute  Qitia  Emptores,  prohibiting  for  England  the 
system  of  subinfeudation,  which,  with  its  modern  qualifications,  is  still 
in  use  in  Scotland.  In  Scotland  there  is  no  Statute  de  Bonis  to  confuse 
the  legal  mind  as  to  the  meaning  and  effect  of  words  of  inheritance,  and 
to  require  the  invention  of  a  cumbrous  device  to  defeat  the  presumable 
intention  of  the  framers  of  the  statute.  But,  on  the  other  hand,  Scotch 
legislators  devised  and  formulated  a  statute  authorising  strict  entails,  by 
which  land  could  be  perpetually  tied  up ;  and  under  which  much  land 
was  effectively  tied  up  in  perpetuity.  It  is  only  by  modern  statutes 
that  the  fetters  of  these  entails  are,  under  certain  conditions,  allowed  to 
be  broken.  The  Scotch  Acts  for  establishing  and  maintaining  a  Eegister 
of  Sasines  have  effected  another  notable  difference  in  the  land  laws  of 
England  and  Scotland.  It  may  be  noted  in  passing  that  the  Scotch  Acts 
before  the  Union  of  the  Kingdoms  are  remarkable  as  well  for  brevity  as 
for  efficiency.  This  is  doubtless  in  great  measure  due  to  their  having 
been  framed  by  "  the  Lords  of  the  Articles  " — a  small  body  of  Commis- 
sioners who  understood  their  business — and  by  them  submitted  en  bloc 
to  the  general  body  of  Parliament. 

In  criminal  law  the  most  striking  point  of  difference,  as  to  sub- 
stantive law,  is  the  comparatively  small  bulk  of  Statute  law  in  Scotland 
relating  to  the  definition  of  crimes.  The  source  of  this  difference  is 
well  expressed  by  Baron  Hume  in  his  introduction  to  his  great  work 
on  Crimes.  "  It  seems,"  he  says,  "  to  be  held  in  England  that  no  Court 
has  power  to  take  cognisance  of  any  new  offence,  although  highly 
pernicious,  and  approaching  very  nearly  to  others  which  have  been 
prohibited,  until  some  statute  has  declared  it  to  be  a  crime,  and  assigned 
a  punishment.  With  us  the  maxim  is  directly  the  reverse :  That  our 
Supreme  Criminal  Court  have  an  inherent  power  as  such  competently 
to  punish  (with  the  exception  of  life  and  limb)  every  act  which  is 
obviously  of  a  criminal  nature ;  though  it  be  such  which  in  time  past 
has  never  been  the  subject  of  prosecution." 

In  the  administration  of  criminal  justice  the  salient  differences 
consist  in  the  important  part  taken  by  the  sheriff  in  all  preliminary 
investigations;  and  the  organisation  of  the  Crown  Office,  by  whose 
agents  the  prosecution  is  conducted  on  behalf  of  the  public,  so  as 
practically  to  take  the  matter  from  the  outset  out  of  the  hands  of  the 
injured  party. 


SCOTLAND  159 

Coroners  appear  to  have  existed  in  Scotland  as  well  as  in  England 
in  the  time  of  Edward  i.  But  this  popular  office  has  long,  in  Scotland, 
gone  into  desuetude.  And  although  some  preliminary  investigations 
are  conducted  by  justices  of  the  peace  and  burgh  magistrates,  the 
functions  performed  in  England  by  these  various  persons  fall  in  Scot- 
land, speaking  generally,  within  the  sphere  of  the  sheriff. 

Points  of  difference  in  detail  will  be  conveniently  noted  under  the 
following  headings  in  alphabetical  order  : — 

Accretion  is  a  term  usually  applied  to  the  titles  to  property,  but 
it  is  also  used  in  reference  to  its  subject-matter.  In  the  former  sense 
accretion  takes  place  when  a  right  originally  imperfect  or  defective  is 
completed  in  the  person  of  the  holder  by  some  posterior  act  on  the  part 
of  him  from  whom  the  right  is  derived.  The  subsequent  completion 
will  draw  back  to  the  date  of  the  grant  and  make  it  as  effectual  as  if 
the  granter's  title  had  then  been  unexceptionable.  Thus  if  A.,  who  is 
not  seised,  has  conveyed  to  B.,  then,  upon  any  event  or  act  by  which 
A.,  if  he  had  not  conveyed,  would  become  seised,  the  title  immediately 
accresces  to  B.'s  title  to  the  same  effect  as  if  A.  had  been  seised  at  the 
date  of  the  conveyance.  The  principle  has  been  expressed  by  the 
maxim  "  Jiis  superveniens  auctori  accrescit  successori."  The  same  principle, 
expressed  in  barbarous  language — "  Tfu  interest,  when  it  accrues,  feeds 
the  estoppel " — has  been  applied  in  English  law. 

The  term  "accretion"  also  denotes  a  rule  of  law  by  which,  in 
certain  cases,  the  survivors  of  a  class  of  legatees  take  the  shares  of 
predecessors. 

Adherence  (action  of). — By  the  Act  1573,  c.  55,  an  action  of  adherence 
was  a  necessary  preliminary  to  an  action  of  divorce  on  the  ground  of 
desertion.  This  necessity  was  removed  by  the  Conjugal  Rights  (Scotland) 
Amendment  Act,  1861,  24  &  25  Vict.  c.  86,  s.  11.  Non-adherence 
still  requires  to  be  proved,  but  this  can  now  be  done  in  the  action  for 
divorce.  An  action  of  adherence  is  now  unknown  in  practice  except 
in  cases  where  aliment  is  concluded  for.  See  Divorce  and  Desertion, 
infra. 

Adjudication  is  the  legal  process  by  which  land  and  other  heritable 
estate  of  a  debtor  is  attached  and  made  available  by  the  creditor  for 
payment  of  his  debt.  It  proceeds  upon  a  liquid  document  of  debt  or 
upon  a  debt  constituted  by  decree.  Where  land  has  been  effectually 
attached  by  this  process,  the  fact  will  be  discovered  by  a  search  of  the 
register,  which  is  always  made  on  the  completion  of  a  purchase  of  land 
according  to  Scotch  practice. 

Administration  (husband's  right  of). — See  Jus  administrationis  and 
Jus  mariti,  infra. 

Administration  (letters  of). — See  Confirmation  of  ExeciUor,  infra. 

Aliment  is  the  term  used  to  denote  the  maintenance  in  lodging, 
food,  and  clothing  which  certain  persons  are  legally  entitled  to  claim 
from  others  by  reason  of  relationship  and  other  circumstances.  On  this 
subject  the  law  of  Scotland  differs  from  English  law  by  engrafting  upon 
the  moral  claim  of  kindred  and  inability,  a  legal  obligation  which  in 
England  is  only  imposed  by  the  Poor  Law  Statutes — such  as  43  Eliz. 
c.  2,  and  31  &  32  Vict.  c.  122.  By  Scotch  law,  parents  are  bound  to 
aliment  their  lawful  children  until  they  are  of  an  age  and  in  a  condition 
to  aliment  themselves.  The  obligation  continues  in  all  cases  until  the 
child  is  physically  able  to  earn  a  livelihood ;  and  may  continue  longer, 
having  regard  to  the  social  condition  and  circumstances  of  the  parties, 


160  SCOTLAND 

especially  in  the  case  of  daughters.  And  it  may  revive  even  after 
forisfamiliation.  If,  however,  a  father  has  suitably  educated  his  son 
and  put  him  into  a  profession,  the  son  is  not  entitled  to  further  assist- 
ance, unless,  by  reason  of  physical  or  mental  infirmity,  he  is  incapacitated 
from  earning  a  livelihood.  Failing  the  father,  the  mother,  and  failing 
the  mother,  the  grandfather,  is  liable,  if  possessed  of  sufficient  means. 
Much  of  the  law  upon  the  subject  is  to  be  found  in  the  case  of  Smith 
V.  SmitK  Nov.  4,  1885,  13  Rettie,  126. 

The  aliment  of  illegitimate  children  is  a  burden  upon  both  parents 
— each  being,  in  ordinary  circumstances,  primarily  liable  for  one-half. 

Indigent  parents  have  a  claim  against  their  children  for  aliment. 

A  husband  is  bound  to  aliment  his  wife  in  his  own  house;  and,  in 
case  of  his  ill-usage  or  misconduct,  she  may  demand  a  separate  aliment. 
Such  a  claim  may  be  made,  as  in  England,  in  course  of  proceedings  in 
an  action  for  divorce,  or  where  separation  is  claimed  a  mensd  et  tlioi-o. 

In  case  of  neglect  of  any  of  these  obligations,  so  that  the  wife 
or  children  become  chargeable  to  the  parish,  the  party  is  punishable 
criminally  under  the  Poor  Law  Amendment  (Scotland)  Act,  1845,  8  &  9 
Vict.  c.  83,  8.  80. 

Alimentary  Trust. — By  the  law  of  Scotland  it  is  competent  for  a 
donor  to  create  a  trust  for  the  alimentary  use  or  benefit  of  the  person 
to  be  benefited;  and  in  such  a  case  the  benefit  is  not  assignable,  nor 
can  it  be  attached  by  creditors,  nor  does  it  go  over  to  the  trustee  in 
bankruptcy  of  the  beneficiary.  But  a  person  cannot  create  an  ali- 
mentary trust  for  his  own  benefit,  so  as  to  place  his  own  funds  beyond 
the  reach  of  his  creditors.  An  alimentary  annuity  in  excess  of  what  is 
reasonable  for  the  purpose  may  be  restricted  by  the  Court. 

AUenarly  means  "  only,"  and  is  used  where  a  conveyance  is  made 
(without  the  intervention  of  trustees)  "  to  A.  in  liferent  for  his  liferent 
use  allenarly  and  to  his  children  (unborn)  in  fee."  If  the  word 
"  allenarly "  were  omitted  in  such  a  destination,  the  children  would 
have  a  mere  spes  siiccessionis,  and  the  father  the  right  to  dispose  of 
the  entire  fee.  If  "  allenarly  "  is  used  as  above,  the  father's  right  is 
restricted  to  a  life  interest,  and  the  fee  is  held  to  be  vested  in  him  as 
a  trustee^  for  the  children  when  they  should  be  born. 

Approbate  and  Reprobate.  —  A  person  is  said  to  approbate  and 
reprobate  when  he  takes  the  advantage  of  one  part  of  a  deed  and 
rejects  the  rest.  This  the  law  does  not  allow.  The  principle  is 
analogous  to  the  English  doctrines  of  estoppel  and  election.  It  differs, 
however,  from  the  English  principle  of  estoppel,  inasmuch  as  that  which 
a  person  has  approbated  or  reprobated  is  not  merely  a  state  of  facts,  but 
may  be,  and  generally  is,  a  consequence  in  law  of  certain  facts,  or  a 
determination  upon  a  mixed  question  of  law  and  fact.  It  differs  from 
the  ordinary  case  of  election,  inasmuch  as  the  phrase  is  properly  used 
where  the  election  has  already  been  determined,  and  it  is  argued  that 
the  determination  to  approbate  or  reprobate,  as  the  case  may  be,  is 
irrevocable.  But  approbate  and  reprobate  and  election  are  really  different 
aspects  of  the  same  principle,  and  produce  the  same  result.  The 
principle  is  thus  stated  by  Lord  Chancellor  Eldon  in  the  leading  case 
of  Ker V.  Wauchope  (H.  L,  1819),  1  Bligh,  1 :  "It  is  equally  settled  in  the 
law  of  Scotland,  as  of  England,  that  no  person  can  accept  and  reject  the 
same  instrument.  If  a  testator  gives  his  estate  to  A.,  and  gives  A.'s 
estate  to  B.,  Courts  of  equity  hold  it  to  be  against  conscience  that  A. 
should  take  the  estate  bequeathed  to  him,  and  at  the  same  time  refuse 


SCOTLAND  161 

to  effectuate  the  implied  condition  contained  in  the  will  of  the  testator. 
The  Court  will  not  permit  him  to  take  that  which  cannot  be  his  but  by 
virtue  of  the  disposition  of  the  will,  and  at  the  same  time  to  keep  what 
by  the  same  will  is  given,  or  intended  to  be  given,  to  another  person. 
It  is  contrary  to  the  established  principles  of  equity  that  he  should 
enjoy  the  benefit  while  he  rejects  the  conditions  of  the  gift." 

Arbitration. — In  Scotland  the  contract  or  deed  of  reference  is  techni- 
cally called  a  submission ;  and  the  award  following  upon  it  is  called  a 
decree-arbitral.  Where  two  arbiters  are  named  with  power  to  appoint 
an  umpire,  the  latter  is  usually  called  an  oversman.  The  submission 
generally  contains  a  consent  to  registration  for  execution  of  the  sub- 
mission and  consequent  decree.  And  when  so  registered,  the  decree- 
arbitral  has  the  effect  of  a  judgment  of  the  Court.  Where  there  is  a  less 
formal  reference,  the  award  may  be  enforced  by  action  upon  the  contract. 
But  it  would  seem  that,  as  a  general  rule,  the  contract  must  be  proved 
by  writing. 

Speaking  generally,  it  may  be  said  that  the  substantive  law  upon 
arbitration  is  now  the  same  in  Scotland  as  in  England.  There  was 
formerly  an  important  difierence,  where  a  contract  contained  a  provision 
for  reference  of  future  differences,  without  naming  the  arbiter.  This 
was  not  an  effectual  reference,  even  if  the  holder  of  a  certain  office  for 
the  time  being  was  pointed  out  as  arbiter.  Nor  was  there  in  such  a 
case  any  statutory  means  of  compelling  a  reference  or  of  superseding 
the  jurisdiction  of  the  ordinary  Courts.  But  by  the  Arbitration  (Scot- 
land) Act,  1894,  57  &  58  Vict.  c.  13,  an  agreement  to  refer  made  after 
the  3rd  of  July  1894  is  not  inefiectual  by  reswon  of  the  reference  being 
to  a  person  not  named ;  and  in  default  of  other  provisions,  arbiters  may 
be  appointed  by  the  sheriff'  having  jurisdiction,  or  by  any  Lord  Ordinary 
of  the  Court  of  Session. 

Arrestment  is  the  diligence  whereby  A.,  who  claims  a  sum  of  money 
from  B.,  attaches  in  the  hands  of  C.  a  debt  due  by  C.  to  B.  Where  an 
arrestment  is  so  used,  A.  is  called  the  arrester ;  B.,  the  common  debtor  ; 
and  C,  the  arrestee.  An  arrestment  may  be  used  upon  a  debt  consti- 
tuted by  judgraent  or  registered  obligation  (which  is  equivalent  to  a 
judgment)  in  favour  of  the  arrester  against  the  common  debtor,  or  it 
may  be  used  on  the  dependence  of  an  action  with  pecuniary  conclusions 
by  the  arrester  against  the  common  debtor.  The  arrestment  does  not 
(except  in  the  case  of  an  arrestment  upon  an  extract  decree  of  the 
Court  of  Exchequer,  which  at  once  transfers  the  debt  to  the  Crown) 
transfer  the  debt  to  the  arrester ;  and  to  effect  this  an  action  of  furth- 
coming at  the  instance  of  the  arrester  against  the  arrestee  is  necessary. 
If  there  are  competing  arrestments,  the  arrester,  or  any  of  the  other 
creditors  claiming  a  lien  upon  the  debt,  may  bring  all  competing  parties 
into  the  field  by  an  action  of  multiplepoinding,  in  which  the  rights  of 
priority  will  be  decided.  There  is  another  kind  of  arrestment,  called 
arrestment  jurisdictionis  fundanda  causd,  which  is  used  where  it  is 
sought  to  establish  the  jurisdiction  of  the  Scotch  Court  over  a  debtor 
who  has  moveable  property  in  Scotland,  but  is  not  on  any  other  ground 
subject  to  its  jurisdiction.  This  kind  of  arrestment  does  not,  however, 
create  any  neosus  over  the  property,  and  in  order  to  attach  any  debts  due 
to  the  defender  it  is  necessary  to  use  an  arrestment  upon  the  dependence 
of  the  action  in  the  usual  way. 

Assignation  is  the  technical  term  for  an  instrument  effecting  a 
transfer  of  property,  other  than  rights  in  land  which  pass  by  seisin 
VOL.  XIII.  11 


162  SCOTLAND 

or  infeftment.  A  short  form  of  assignation  is  provided  by  25  &  26 
Vict.  c.  85.  Previously  to  this  the  forms  in  use  were  cumbrous,  and 
retained  traces  of  the  still  older  method  of  transferring  such  property 
by  an  irrevocable  mandate  to  take  possession  of  or  receive  it.  To  make 
the  transfer  of  a  debt  or  obligation  effectual,  intimation  to  the  debtor  is 
necessary.  So  long  as  this  is  omitted,  a  subsequent  assignee,  acting 
boTid  fide,  may  by  prior  intimation  acquire  priority ;  or  another  creditor 
may  obtain  priority  by  arrestment  or  poinding.  In  case  of  bankruptcy 
the  property  is  transferred  to  the  trustee  by  the  act  and  warrant  in  his 
favour  in  the  same  way  as  if  an  assignation  had  been  made  to  him  and 
intimated  (19  &  20  Vict.  c.  79,  s.  102).  Forms  of  intimation  are  provided 
by  the  Act  25  &  26  Vict.  c.  85 ;  and  there  are  equivalents  recognised  by 
law.  The  most  useful  mode  is  to  obtain  an  acknowledgment  of  intimation 
written  and  signed  by  the  debtor  upon  the  back  of  the  assignation  itself. 
An  assignation  transfers  no  greater  right  than  the  person  making  it 
possessed  himself — that  is,  of  course,  subject  to  the  law  relating  to 
negotiable  instruments  and  reputed  ownership.  The  effect  of  an 
assignation  is  expressed  in  the  maxim — Assignatiis  utitur  jure  auctoris. 
No  assignation  by  way  of  security  of  goods  which  remain  in  the  possession 
of  the  assignor  has  any  effect  in  giving  a  right  in  the  nature  of  property 
to  the  assignee,  so  that  such  an  assignation  is  no  security  any  more  than 
an  unregistered  bill  of  sale  is  in  England. 

As  to  leases,  where  the  assignor  is  in  actual  possession  and  has  power 
to  assign,  the  assignation  is  completed  by  possession  given  to  the  assignee. 
Where  the  actual  possession  is  held  by  a  sub-tenant,  intimation  to  the 
sub-tenant  completes  the  transfer  to  the  effect  of  entitling  the  assignee 
to  receive  the  rent  from  the  sub-tenant.  Where  the  lessee  wishes  to 
make  his  lease  a  security  for  a  debt,  while  he  remains  in  possession,  the 
expedient  commonly  resorted  to  is  for  the  lessee  to  assign  his  lease  to 
the  creditor  by  a  deed  which  is  intimated  to  the  landlord,  and  for  the 
creditor  to  sub-let  to  the  former  lessee.  But  while  the  actual  possession 
remains  unchanged,  the  security  is  not  to  be  relied  on,  except  in  the  case 
of  a  long  lease,  where  the  lease  and  assignation  are  registered  under  the 
provisions  of  the  Registration  of  Leases  (Scotland)  Act,  1857,  20  &  21 
Vict.  c.  26. 

Assythment  is  the  indemnity  due  to  the  representatives  of  a  deceased 
person  from  the  person  who  is  criminally  guilty  of  his  death.  In  practice 
the  action  of  assythment  has  given  place  to  the  action  of  damages  for 
personal  injuries  {actio  injuriarum). 

Avizandum  is  an  expression  commonly  used  where  the  Court  or  a 
judge,  after  hearing  argument  in  a  cause,  instead  of  at  once  pronouncing 
judgment,  takes  time  for  consideration.  The  Court  is  said  to  "  make 
avizandum  of  the  case." 

Back-bond  or  Back-letter  is  a  writ  in  which  the  terms  of  an  obligation 
or  conveyance  are  qualified  in  favour  of  the  grantor  of  the  primary 
instrument.  Such  a  writ  is  often  granted  where  the  terms  of  the  entire 
transaction  are  too  complicated,  or  otherwise  inappropriate,  to  be  set 
forth  in  a  registered  instrument. 

Bailie  is  the  proper  designation  for  the  magistrate  of  a  burgh.  The 
term  is  strictly  applicable  to  any  person  responsible  for  the  execution 
of  an  office,  and  was  formerly  invariably  used  to  designate  the  person 
to  whom  the  duty  was  committed  of  giving  seisin  or  infeftment  in  land. 

Bankruptcy  in  Scotland,  so  far  as  statutory  enactment  is  concerned, 
is  mainly  regulated  by  the  Bankruptcy  (Scotland)  Act,  1856,  19  &  20 


SCOTLAND  163 

Vict.  c.  79,  and  the  Bankruptcy  (Scotland)  Amendment  Act,  1860, 
23  &  24  Vict.  c.  33,  which  must  be  read  along  with  the  Debtors  (Scot- 
land) Act,  1880,  33  &  34  Vict.  c.  34.  The  act  of  the  Court  by  which 
the  debtor's  property  is  attached  and  awarded  to  the  trustee  in  bank- 
ruptcy is  called  "  sequestration." 

The  general  principles  relating  to  bankruptcy  in  Scotland  do  not, 
in  their  effect,  greatly  differ  from  those  in  England — the  most  prominent 
feature  of  difference  being  that  more  is  done  by  the  trustee  and  less  by 
the  Court.  It  is  probable  that  the  property  distributed  by  means  of 
sequestration  in  bankruptcy  in  Scotland  is  proportionally  larger  than 
in  England,  by  reason  of  the  circumstance  that  a  person  cannot  create 
a  valid  right  in  security  over  personal  chattels  of  which  he  retains 
possession. 

BUI  of  Uxchange. — There  is  now  little  difference  between  the  law  of 
Scotland  and  that  of  England  relating  to  bills  of  exchange,  the  Bills 
of  Exchange  Act,  1882,  45  &  46  Vict.  c.  61,  having  codified  the  law  for 
both  countries,  and  assimilated  most  of  the  remaining  points  of  differ- 
ence. The  only  substantial  point  of  difference  remaining  is  that  expressly 
retained  in  sec.  53  of  the  Act.  By  subs.  2  of  this  section  it  is  enacted : — 
"  In  Scotland,  where  the  drawee  of  a  bill  has  in  his  hands  funds  available 
for  the  payment  thereof,  the  bill  operates  as  an  assignment  of  the  sum 
for  which  it  is  drawn  in  favour  of  the  holder,  from  the  time  when  the 
bill  is  presented  to  the  drawee,"  In  procedure,  the  law  and  practice  of 
Scotland  in  regard  to  summary  diligence  upon  bills  of  exchange  is  saved 
by  sec.  98  of  the  Act. 

Bill  of  Sale  is  the  instrument  used  for  the  transfer  of  a  ship.  Bills 
of  sale  of  personal  chattels,  such  as  are  used  under  the  Bills  of  Sale  Acts 
in  England,  are  unknown  in  Scotland. 

Blanch-holdinff  is  the  tenure  under  which  the  sum  payable  by  the 
vassal  to  the  superior  is  very  trifling,  or  merely  illusory — as  a  pepper- 
corn, si  petatur  tantum.  This  tenure  exists  in  many  lands  held  of  the 
Crown ;  but  is  seldom  now  adopted  in  the  constitution  of  original  rights. 

Burgage-holding  is  the  tenure  by  which  lands  situated  within  a  royal 
burgh  are  held  under  the  Crown.  It  is  constituted  by  a  charter  from 
the  Crown  in  favour  of  the  burgh.  Every  proprietor  of  such  property 
holds  directly  under  the  Crown  as  superior,  for  "  service  of  burgh  used 
and  wont "  (a  service  now  merely  nominal).  The  distinction  between 
feu  and  burgage-holdings  was  abolished  by  the  Conveyancing  (Scotland) 
Act,  1874,  37  &  38  Vict.  c.  94,  s.  25. 

Caution  \&  the  technical  expression  in  Scotch  law  for  the  obligation 
of  a  surety.  It  corresponds  to  suretyship  in  England,  and  the  principles 
which  regulate  the  contract  are  practically  identical  in  both  countries. 

Cessio  BoTwrtim  is  a  proceeding  which  was  formerly  used  to  relieve  a 
debtor  from  the  evils  of  imprisonment.  In  modern  practice  this  process 
is  used  for  the  purpose  of  a  cheap  and  speedy  distribution  of  the  estate 
in  the  case  of  insolvents  where  the  total  liabilities  are  small.  The  pro- 
ceedings are  mainly  regulated  by  the  Debtors  (Scotland)  Act,  1880, 

43  &  44  Vict.  c.  34,  and  the  Bankruptcy  and  Cessio  (Scotland)  Act,  1881, 

44  &  45  Vict.  c.  22.  By  sec.  11  of  the  last-mentioned  Act,  where  the 
liabilities  of  the  debtor  exceed  £200,  the  sheriff  before  whom  the  process 
is  pending  may,  if  he  thinks  it  expedient  having  regard  to  the  circum- 
stances, award  sequestration,  after  which  proceedings  shall  go  on  as 
if  sequestration  had  been  awarded  under  the  Bankruptcy  (Scotland) 
Act,  1856. 


164  SCOTLAND 

Clare  Constat  is  a  writ  granted,  by  a  subject  superior,  to  the  heir  of 
the  person  last  seised  in  the  land  held  under  the  granter.  Under  the 
Scotch  system  of  land  tenure,  where  infeftment  or  seisin  is  effected  by 
registration,  the  title  of  the  person  newly  infeft  or  seised  must  be  con- 
nected with  the  person  last  seised  by  formal  instruments  in  writing. 
Where  the  succession  takes  place  by  heirship,  and  not  by  immediate 
conveyance  under  a  deed  or  will,  the  fact  of  the  heirship  must  appear  by 
such  a  formal  instrument ;  and  this  may  be  done,  in  the  case  where  the 
immediate  superior  is  a  subject,  either  by  dare  constat,  or  by  decree  of 
service  pronounced  by  the  sheriff".  Where  the  title  is  held  immediately 
under  the  Crown,  a  decree  of  service  is  necessary. 

Collation  is  the  term  applied  in  Scotch  law  to  the  act  whereby  a 
person  entitled  to  a  distributive  share  of  property  brings  into  hotchpot 
(to  use  the  expression  of  English  law)  something  to  which  he  has  an 
independent  claim.  Thus,  in  intestate  succession,  the  heir  may  claim 
a  share  of  the  moveable  (or  personal)  estate,  provided  he  collates  the 
heritage  which  would  otherwise  fall  to  him.  A  child  claiming  Icgitim 
in  the  succession  to  father  or  mother  is  bound  to  collate  any  provision 
or  portion  which  he  may  have  already  received,  and  impute  it  as  part 
of  the  legitim. 

College  of  Justice  was  a  term  applied  in  statutes  of  the  sixteenth  and 
seventeenth  centuries  to  the  Court  of  Session  and  various  professional 
persons  connected  with  it.  Members  of  the  College  formerly  enjoyed 
special  privileges  in  regard  to  local  taxation,  etc.  But  these  have  ceased 
to  exist.  The  term  "  Senator  of  the  College  of  Justice  "  is  still  appropriate 
as  the  designation  of  a  judge  of  the  Court  of  Session. 

Commission  for  taking  proof  or  for  recovery  of  documents  may  be 
issued  by  the  Court,  even  although  the  witness,  or  haver  (as  the  person 
in  possession  of  a  document  is  called),  is  beyond  the  jurisdiction  of  the 
Court.  The  commission  is  accompanied  by  a  diligence,  or  judicial  warrant,, 
under  which  the  witnesses  or  havers  are  cited ;  and  this  may  be  given 
effect  to  within  His  Majesty's  dominions  by  order  of  the  Court  of  the 
jurisdiction,  under  the  Evidence  by  Commission  Act,  1859,  22  Vict.  c.  20. 
The  Commissioner  is  the  person  appointed  by  the  Court  to  take  the 
evidence  or  to  receive  the  documents ;  and  when  he  acts  in  England,  his 
powers,  e.g.  of  deciding  upon  the  admissibility  of  evidence,  are  not  limited 
by  the  English  rules  relating  to  examiners.  His  proper  fees  are  regu- 
lated by  Scotch  practice,  and  not  by  any  scale  prescribed  according  to 
English  rules. 

Commonty,  or  Common,  is  a  piece  of  ground  belonging  in  property  to 
one  or  more  persons  and  generally  subject  to  various  rights  of  servitude 
somewhat  similar  to  those  which  exist  in  English  commons.  By  a  statute 
of  1695,  c.  38,  means  were  provided,  by  an  action  in  the  Court  of  Session 
(now  competent  in  the  Sheriff'  Court),  to  ascertain  the  various  rights  and 
to  divide  the  common  among  the  parties  concerned.  The  statute  ex- 
pressly exempts  from  division  commonties  which  are  the  property  of  the 
Crown  or  of  royal  burghs. 

Compensation  is  the  term  used  in  Scotland  for  the  set-off  of  liquid 
claims  in  an  action.  The  plea  of  compensation  was  first  allowed  by  a 
statute  of  1592,  c.  143. 

Competent  and  omitted  is  an  expression  applying  to  a  plea  which  might 
have  been,  but  has  not  been,  stated  in  an  action.  The  judgment  in  an 
action  is,  in  certain  cases,  res  judicata  in  regard  to  such  pleas  as  well  as  to- 
a  plea  which  has  been  stated  and  repelled. 


SCOTLAND  165 

Condescendence  is  an  articulate  statement  annexed  to  a  summons, 
setting  forth  the  allegations  in  fact  which  constitute  the  grounds  of 
action. 

Conditio  si  sine  liberis  decesserit  is  an  implied  condition  which  in 
certain  cases  the  law  holds  as  attached  to  mortis  causd  dispositions  of 
moveable  or  heritable  estate  conveying  such  estate  beyond  the  disponer's 
own  children.  If  when  the  granter  executed  the  conveyance  he  had  no 
children,  but  after  his  death  a  posthumous  child  is  born  to  him,  the  con- 
veyance will  be  ineffectual  to  carry  the  succession  past  the  child,  in 
whose  favour  it  is  presumed  a  new  conveyance  would  have  been  granted 
had  its  father  survived.  The  presumption  also  applies  to  cases  where 
a  testator  makes  a  provision  or  destination  in  favour  of  a  child,  whom 
failing  to  a  stranger.  If  the  child  has  predeceased  the  testator  but  left 
issue  who  survive,  the  law  implies  a  substitutionary  gift  to  the  issue  to 
the  exclusion  of  the  stranger.  The  condition  is  extended  to  a  gift  made 
by  the  testator  to  a  person  to  whom  (though  not  his  child)  he  stands  in 
loco  jJarentis. 

ConditioTud  institute  is  an  expression  used  to  denote  a  person  to  whom 
a  gift  is  made  conditionally  upon  a  certain  event,  e.(/.  upon  death  without 
issue  of  a  certain  person.  The  expression  is  commonly  used  in  contra- 
distinction to  substitute  in  a  destination  (v.  inf.).  The  right  of  the  condi- 
tional institute  fails  if  the  condition  fails,  but  is  not  defeasible  by  the 
disposition  of  the  prior  institute.  The  right  of  the  substitute  is  defeasible 
(except  where  there  is  a  strict  entail  under  the  conditions  of  the  Entail 
Statutes)  by  the  disposition  of  a  prior  institute,  but  if  not  so  defeated, 
takes  effect  unconditionally  upon  the  death  of  the  institute. 

Confirmation  by  a  superior  was  an  instrument  formerly  required  in 
certain  cases  to  complete  the  chain  of  title  to  feudal  property,  but  is 
rendered  unnecessary  by  the  Conveyancing  (Scotland)  Act,  1874,  31  & 
32  Vict.  c.  98,  8.  4. 

Confirmation  of  executor  is  the  grant  made  by  the  sheriff,  exercising 
the  jurisdiction  of  the  former  Commissary  Courts,  conferring  upon  the 
executor  of  a  deceased  person  the  legal  title  to  his  moveable  (or  personal) 
estate  within  Scotland.  If  the  deceased  possessed  personal  estate  in 
England  or  Ireland  the  confirmation  is  produced  in  the  Probate  Court 
of  England  or  Ireland,  along  with  a  certified  copy  of  the  sheriffs  inter- 
locutor finding  that  the  deceased  died  domiciled  in  Scotland.  It  is 
then  sealed  in  that  Court,  and  has  the  effect  of  probate  or  letters  of 
administration  (21  &  22  Vict.  c.  56,  ss.  12,  13). 

Conquest,  in  the  sense  of  heritable  property  acquired  by  singular  title, 
e.g.  purchase,  was  formerly  distinguishable  from  heritage  acquired  by 
descent,  in  regard  to  the  succession  of  collaterals.  This  distinction  was 
abolished  by  the  Conveyancing  (Scotland)  Act,  1874,  s.  37.  The  word 
conquest  has  been  sometimes,  but  is  now  rarely,  employed  in  marriage 
contracts  as  distinguished  from  other  property,  in  the  distribution. 
Where  so  employed,  "  conquest "  is  confined  to  property  acquired  by  the 
prcepositus  so  as  to  be  thereby  made  wealthier ;  and  does  not  apply  to 
property  purchased  with  money  already  possessed  or  borrowed. 

Consignation  is  the  deposit  with  a  third  party  of  a  sum  of  money  to 
answer  a  debt  or  obligation.  It  is  commonly  applied  to  the  deposit, 
made  with  a  bank,  of  money  to  abide  the  order  of  the  Court  to  be  made 
in  a  pending  action  or  proceeding.  A  purchaser  at  a  judicial  sale  may 
be  discharged  of  the  price  by  making  consignation  (19  &  20  Vict.  c.  91, 
s.  2).     Where  consignation  is  properly  made,  the  effect  is  to  stop  the 


166  SCOTLAND 

running  of  interest,  and  to  leave  the  person  entitled  to  the  money  to 
take  it  with  bank  interest  only. 

Courtesy  is  a  legal  liferent  accruing  to  the  surviving  husband  of 
a  proprietrix  of  heritable  estate  in  Scotland.  It  extends  to  all  the 
heritable  subjects,  not  being  conquest,  in  which  the  wife  was  infeft  at 
the  time  of  her  death.  There  must  have  been  a  child  born  of  the 
marriage  who  has  been  heard  to  cry,  and  who  is  the  heir  presumptive 
to  the  estate. 

Curatory  is  the  term  applied  in  Scotland  for  the  qualified  guardian- 
ship over  minors,  i.e.  persons  who  have  reached  pupillarity  but  have  not 
attained  majority.  By  Scotch  law  the  total  incapacity  of  a  child  extends 
only  to  the  period  of  pupillarity,  that  is,  to  the  age  of  fourteen  in  males 
and  twelve  in  females,  during  which  period  the  property  and  person  of 
the  child  are  in  the  charge  of  tutors.  After  the  age  of  pupillarity  the 
child  is  presumed  to  be  capable,  with  the  consent  of  curators,  if  there 
are  any,  of  a  valid  act ;  but  his  act  or  deed,  even  if  made  with  the  con- 
sent of  curators,  may  be  challenged  and  reduced  (or  set  aside)  on  the 
ground  of  lesion,  that  is  to  say,  if  it  is  hurtful  to  him.  The  father  while 
he  is  still  alive  is  the  natural  guardian  to  his  minor  children,  so  that  he 
fills  the  office  of  tutor  while  they  are  pupils  and  of  curator  while  they 
are  minors.  The  father  has  the  power,  by  deed  or  will,  of  nominating 
persons  to  act  after  his  death  as  tutors  and  curators  to  his  lawful 
children ;  and  the  persons  so  nominated  have  the  same  powers,  as 
tutors  and  curators,  that  the  father  would  have  had  himself.  Where 
curators  have  not  been  appointed  by  the  father,  they  may  be  appointed 
by  the  Court  in  an  action  raised  at  the  instance  of  the  minor.  A  person 
making  a  gi-atuitous  conveyance  to  a  minor  may,  in  that  conveyance, 
appoint  curators  for  the  purposes  of  management  of  that  property  during 
the  minority.  The  term  curatwy  is  also  applied  to  the  guardianship  of 
insane  persons ;  but  the  curator  bonis  usually  appointed  in  such  cases 
has  powers  more  similar  to  those  of  tutors,  except  that  those  powers  are 
exercised  under  supervision  of  the  Court.  Where  a  minor  is  engaged  in 
a  lawsuit,  and  is  not  otherwise  provided  with  curators,  a  curator  ad 
litem  is  appointed,  for  the  purpose  of  advising  upon  and  conducting  the 
proceedings  on  behalf  of  the  minor. 

Dead's  Part  is  that  part  of  the  moveable  (or  personal)  estate  which 
can  be  disposed  of  by  will  or  mortis  causd  disposition.  The  ancient 
rule — that  one-third  (if  there  are  children)  or  one-half  (if  there  are  no 
children)  is  due  to  the  widow,  and  the  like  share  (which  is  called  bairn's 
part  or  legitim)  to  the  children,  namely,  one-third  if  there  is  a  widow,  or 
one-half  if  none — still  survives  in  Scotland.  The  dead's  part  is  the 
remaining  one-third,  or  one-half,  as  the  case  may  be,  or  the  whole  if 
there  are  neither  widow  nor  children.  If  the  dead's  part  is  not  disposed 
of  in  whole  or  in  part  by  will,  it  falls  to  the  next-of-kin  of  the  deceased. 
The  shares  of  the  wife  and  children  may  be  (and  usually  are)  by  an  ante- 
nuptial contract,  renounced  by  the  widow,  and  by  the  parties  on  behalf 
of  the  children,  in  consideration  of  the  provisions  made  by  the  contract. 
These  rights  if  not  so  renounced  may  be  discharged  afterwards,  by  the 
widow  if  fully  informed  of  her  rights  and  acting  freely;  or  by  the 
children  when  they  have  attained  majority.  Where  the  wife  has  dis- 
charged her  share,  it  accrues  to  the  estate,  so  that  if  there  are  children 
whose  right  is  not  discharged,  one-half  is  due  to  them,  and  the  remainder 
is  dead's  part.  So  if  all  the  children  have  discharged  their  rights,  half 
of  the  estate  goes  to  the  widow,  if  any,  and  the  remaining  half  is  dead's 


r 


SCOTLAND  167 

« 
part.  Where  some  only  of  the  children  have  discharged  their  shares, 
such  shares  accrue  to  the  bairn's  part,  for  the  benefit  of  the  remaining 
children.  After  the  passing  of  the  Married  Women's  Property  (Scot- 
land) Act,  1881,  44  &  45  Vict.  c.  21,  the  fiusband  of  any  woman  who 
dies  domiciled  in  Scotland  takes  by  operation  of  law  the  same  share 
and  interest  in  her  moveable  estate  which  is  taken  by  a  widow  in  her 
deceased  husband's  moveable  estate;  and  the  children  have  a  similar 
right  of  legitim  in  their  mother's  as  in  their  father's  moveable  estate. 
These  rights  may  be  renounced  or  discharged  in  the  same  manner  as  the 
rights  in  the  estate  of  the  husband  and  father. 

Dean  of  Faculty  is  the  member  of  the  Faculty  of  Advocates  chosen 
by  annual  election  as  the  President  of  the  Faculty. 

Deathbed. — Deeds  executed  on  deathbed — as  to  which  certain  pre- 
sumptions were  established  by  law — were  formerly  liable  to  challenge 
{ex  cajnte  lecti)  by  the  heir  who  would  otherwise  succeed.  This  right  of 
challenge  was  abolished  by  the  Act  34  &  35  Vict.  c.  81 ;  and  although 
this  statute  is  nominally  repealed  by  the  Statute  Law  Eevision  Act  of 
1883,  46  &  47  Vict.  c.  39,  this  does  not  (by  reason  of  the  usual  saving 
clause)  revive  the  right  of  challenge,  which  was  the  only  effect  of  the 
law  of  deathbed  (see  ^;er  Lord  Watson  in  the  Lauderdale  Peerage  Case, 
1885,  10  App.  Cas.  692,  754). 

Declaration  is  the  statement  taken  before  a  magistrate  from  a 
prisoner  apprehended  on  suspicion  of  a  crime.  It  is  the  duty  of  the 
magistrate,  before  taking  the  declaration,  to  inform  the  prisoner  that  it 
is  optional  for  him  to  make  a  statement,  and  that  whatever  he  says  may 
be  used  against  him  on  his  trial.  The  declaration  is  committed  to 
writing  in  presence  of  the  magistrate,  and  is  signed  by  the  prisoner, 
or  if  he  cannot  or  will  not  sign  it,  by  the  magistrate.  It  must  also  be 
signed  by  two  witnesses  who  have  been  present  at  the  examination. 
The  declaration  may  be  used  at  the  trial  as  evidence  against  the  prisoner, 
but  it  is  not  evidence  in  his  favour. 

Decree  is  the  judgment  of  a  Court  whereby  the  question  at  issue 
between  the  parties  is  decided.  A  decree  of  condemnator  is  a  decree  in 
favour  of  the  pursuer.  A  decree  of  dismissal  is  one  by  which  the  action 
as  laid  is  dismissed  ;  it  does  not  exclude  a  new  action.  But  a  decree  of 
absolvitor,  which  is  a  decree  on  the  merits  in  favour  of  the  defender,  is 
res  judicata,  and  excludes  another  action  on  the  same  grounds.  Decrees 
may  either  be  in  absence  or  in  foro.  A  decree  in/oro  is  a  decree  which 
is  pronounced  after  the  defender  has  compeared  and  proponed  defences  ; 
a  decree  in  absence  is  one  which  is  pronounced  against  a  defender  who 
has  not  appeared  and  pleaded  on  the  merits  of  the  cause.  By  the  Court 
of  Session  Act,  1868,  31  &  32  Vict.  c.  100,  s.  24,  a  decree  in  absence 
pronounced  after  personal  service,  and  the  lapse  of  a  stated  period 
without  having  been  recalled  or  brought  up  for  review,  has  all  the 
privileges  of  a  decree  in  foro. 

Deed  is  an  instrument  in  writing  executed  with  due  formalities, 
which  were  formerly  somewhat  elaborate.  These  were  much  simpHfied 
by  the  Conveyancing  (Scotland)  Act,  1874,  37  &  38  Vict.  c.  94 ;  and  the 
essentials  are  now  as  follows : — The  instrument  must  be  subscribed  by 
the  grantor  on  the  last  page,  if  written  on  a  single  sheet.  If  consisting 
of  more  than  one  sheet  it  must  be  subscribed  by  the  grantor  on  each 
page,  or  on  the  last  page  of  each  sheet.  It  must  be  subscribed  by  two 
witnesses,  who  are  described  by  name  and  place  of  residence  in  the 
attestation  clause,  or  else  their  descriptions  are  added  to  their  signatures. 


168  SCOTLAND 

The  descriptions  of  the  witnesses  need  not  be  in  their  own  handwriting, 
and  may  be  added,  or  the  attestation  clause  may  be  filled  up,  after  the 
execution  of  the  deed,  at  any  time  before  the  deed  is  recorded  for  pre- 
servation, or  made  the  foundation  of  proceedings  in  any  Court.  And 
the  want  of  formality  may  be  supplied  by  other  evidence  if  the  deed  has 
been  subscribed  by  the  grantor  and  two  witnesses.  A  writing  wholly 
in  the  handwriting  of  the  grantor,  and  subscribed  by  him,  has  all  the 
effects  of  a  deed,  although  not  witnessed. 

Defender  is  the  party  against  whom  an  action  is  directed,  corresponding 
to  the  English  defendant. 

De  Jideli  administratione  officii  is  the  description  of  oath  usually 
taken  l3y  persons  on  entering  upon  an  office  of  public  trust  or  duty. 
The  takers  of  the  oath  swear  to  be  faithful  in  the  discharge  of  the  duties 
of  their  office. 

Deforcevient  is  the  violent  resistance  or  hindrance  to  officers  of  the 
law  in  the  discharge  of  their  official  duty ;  and  is  punishable  as  a  crime. 
JDenunciation  (of  a  person  as  rebel)  is  the  technical  term  for  the 
proclamation  of  what  is  similar  to  a  sentence  of  outlawry.  It  is  super- 
seded, for  civil  purposes,  by  the  registration  of  an  expired  charge  for 
payment  pursuant  to  the  Debtors  (Scotland)  Act,  1838,  1  &  2  Vict, 
c.  114.  Denunciation  on  a  sentence  of  fugitation  by  the  Court  of 
Justiciary  is  still  in  use,  and  has  the  effect  of  escheat  of  the  estate,  and 
other  penal  consequences. 

Desertion  of  a  wife  by  the  husband,  or  vice  versd,  wilfully  and 
maliciously  committed,  and  continued  for  four  years,  may,  in  Scotland, 
be  made  the  foundation  of  a  decree  of  divorce.  As  such  a  decree  is 
accompanied  by  a  sentence  of  forfeiture  by  the  guilty  party  (under  an 
Act  of  the  Scotch  Parliament,  1573,  c.  55)  of  all  rights  of  property 
enjoyed  in  consequence  of  the  marriage  or  of  marriage  settlement,  it 
becomes  of  great  importance  in  such  cases  to  ascertain  whether  the 
Court  has  jurisdiction;  a  question  which  depends  upon  the  domicile 
of  the  husband.     See  Divorce. 

Destination  is  the  term  applied  to  the  series  of  persons  and  heirs 
called  to  succeed  in  a  disposition  of  heritable  property.  Where  there  is 
a  simple  destination  by  a  person  infeft  or  seised  of  the  estates — for 
instance,  "  To  A.  and  the  heirs  of  his  body,  whom  failing  to  B.  and  the 
heirs  of  his  body,  etc." — it  is  competent  to  each  person  in  the  line  of 
succession  to  alter  the  destination  so  as  to  defeat  all  who  come  after. 
If,  however,  to  a  destination  the  appropriate  terms  are  added  to  con- 
stitute a  strict  entail  under  the  Entail  Statutes,  the  estate  becomes 
effectually  tied  up,  and  can  only  be  disentailed  under  the  powers  of  the 
Disentailing  Statutes.  Where  a  destination  is  made  by  the  disposition 
of  a  person  who  has  the  beneficial  interest  (or  a  power)  under  a  trust, 
difficult  questions  sometimes  arise,  it  being  a  question  of  intention 
whether  a  simple  destination  to  a  succession  of  persons  as  substitutes, 
or  conditional  institution  of  each  is  meant. 

Diligence  is  a  word  used  for  the  legal  process  for  attaching  the  pro- 
perty or  person  of  a  debtor  by  way  of  execution.  The  term  is  employed 
for  the  proceedings  by  which  heritable  property,  as  well  as  those  by 
which  the  moveable  property,  is  attached. 

Discussion  is  a  word  used  to  indicate  the  order  in  which  diligence  is 
to  be  used  against  several  persons  who  are  liable  for  the  same  debt.  It 
imports  not  merely  a  demand  for  payment,  but  enforcement  of  the 
demand  by  legal  diligence  against  the  estate  of  the  debtor.    At  common 


SCOTLAND  169 

law  where  a  person  is  bound  expressly  as  surety  for  another,  he  has  the 
benefit  of  discussion;  i.e.  the  creditors  must  use  all  possible  diligence 
against  the  property  of  the  principal  debtor  before  coming  upon  the 
surety.  But  by  the  Mercantile  Law  Amendment  Act,  1856,  when  one 
is  bound  as  cautioner  for  a  principal  debtor,  it  is  not  necessary  for  the 
creditor  to  whom  such  cautionary  obligation  is  granted  to  discuss  or  do 
diligence  against  the  principal  debtor  before  calling  upon  the  cautioner 
for  payment  of  the  debt  to  which  such  cautionary  obligation  refers. 
A  cautioner  may,  however,  stipulate  in  the  bond  of  caution  that  the 
principal  debtor  shall  be  discussed  before  payment  is  demanded  from 
him.  Representatives  of  a  deceased  must  be  discussed  in  a  certain  order, 
unless  in  the  case  of  an  obligation  for  which  the  deceased  bound  his 
heirs,  executors,  etc.,  "  without  the  benefit  of  discussion." 

Disposition  is  a  unilateral  deed  of  alienation  by  which  a  right  to 
property  either  heritable  or  moveable  is  conveyed.  The  disposition 
most  frequently  used  in  practice  is  a  deed  of  conveyance  of  heritable 
property.  By  a  Disposition  and  Settlement  a  person  provides  for  the 
general  disposal  of  his  property  after  his  death.  Formerly  a  will  or 
testament,  in  the  strict  sense  of  the  word,  was  not  a  valid  mode  of 
conveyance  of  heritable  property.  But  since  the  Titles  to  Land  Con- 
solidation (Scotland)  Act,  1868,  a  testamentary  or  mortis  causd  writing 
purporting  to  convey  or  bequeath  heritage  and  executed  in  the  manner 
required  or  permitted  in  the  case  of  any  testamentary  writing  by  the 
law  of  Scotland — which  includes  execution  according  to  the  forms  of 
the  place  of  execution — is  a  valid  disposition  of  such  heritable  property. 

Divmxe. — The  most  important  points  on  which  the  law  of  divorce  in 
Scotland  difi'ers  from  the  English  law  are :  1.  That  a  husband,  as  well 
as  a  wife,  may  be  divorced  for  adultery.  2.  That  either  spouse  may  be 
divorced  for  wilful  desertion.  3.  That  divorce  involves  a  forfeiture  by 
the  guilty  party  of  the  tocher  and  donations  propter  iiiqjtias,  which  have 
been  construed  to  include  every  benefit  that  the  party  has  derived,  or 
may  derive,  from  the  marriage  or  by  marriage-contract,  with  the  result 
that  the  benefit  lapses  to  the  other  party  as  if  the  guilty  party  were 
naturally  dead.  The  proper  forum  to  seek  a  divorce,  whether  on  the 
ground  of  adultery  or  desertion,  is  the  Court  of  the  country  of  the 
domicile  of  the  husband.     See  Desertion. 

Edictal  Citation  is  the  mode  of  summoning  persons  who  are  resident 
furth  of  Scotland.  Formerly  edictal  citation  was  made  by  proclamation 
at  the  market  cross  of  Edinburgh  and  pier  and  shore  of  Leith.  It  is 
now  executed  in  civil  actions  by  delivery  of  a  copy  of  the  summons  and 
schedule  of  citation  at  the  office  of  the  Keeper  of  Edictal  Citations. 
In  the  case  of  criminal  proceedings  against  a  person  who  has  already 
absconded,  the  indictment  is  served  at  his  last  known  residence  (Criminal 
Procedure  (Scotland)  Act,  1887,  50  &  51  Vict.  c.  35,  s.  26),  and  no  edictal 
citation  is  necessary. 

Entail. — In  its  most  comprehensive  sense  an  entail  or  tailzie  is  any 
deed  by  which  the  legal  course  of  succession  is  cut  off',  and  an  arbitrary 
one  substituted.  In  its  strict  sense  it  is  a  deed  framed  in  terms  of  the 
.statute  1685,  c,  22,  and  is  effectual  to  prevent  alienation  from  the  series 
of  persons  pointed  out  by  the  destination.  The  fetters  formerly  imposed 
upon  alienation  by  entails  have  been  relaxed  by  a  series  of  statutes, 
viz. : — The  Montgomery  Act,  1770, 10  Geo.  ill.  c.  51 ;  the  Aberdeen  Act, 
1824,  5  Geo.  iv.  c.  87;  the  Roseberv  Act,  1836,  6  &  7  Will.  iv.  c.  42; 
the  Kutherfurd  Act,  1848,  11  &  12' Vict.  c.  36,  which  also  (by  sec.  39) 


170  SCOTLAND 

simplified  the  form  of  deed  for  creating  a  new  entail ;  the  Entail  Acts  of 
1853,  16  &  17  Vict.  c.  94 ;  1868,  31  &  32  Vict.  c.  84 ;  1875,  38  &  39  Vict. 
c.  61 ;  1878,  41  &  42  Vict.  c.  28 ;  and  1882,  45  &  46  Vict.  c.  53. 

Entry  with  the  superior  is  a  step  formerly  required  to  be  taken  by 
the  heir  of  the  vassal  in  order  to  complete  his  title  to  the  feu.  The 
entry  is  now  implied  by  infeftment  (Conveyancing  (Scotland)  Act,  1874, 
37  &  38  Vict.  c.  94). 

ErcLS^ire. — Formerly  it  was  a  fatal  objection  to  a  deed  if  any  essen- 
tial part  of  it  was  written  upon  an  erasure.  This  led  to  a  wholesome 
practice  in  the  engrossment  of  instruments  whereby,  if  the  engrossment 
has  to  be  altered  before  execution,  the  words  to  be  removed  are  deleted, 
and  any  words  to  be  substituted  or  added  are  written  in  the  margin. 
These  alterations  are  authenticated  by  the  initials  of  the  grantor  and 
witnesses  'in  the  margin,  and  are  also  mentioned  in  the  attestation 
clause.  The  rigour  of  the  old  law  on  the  subject  was  relaxed  by  the 
Erasures  in  Deeds  (Scotland)  Act,  1836,  6  &  7  Will  iv.  c.  33,  extended 
to  all  instruments  by  sec.  144  of  the  Titles  to  Land  Consolidation 
(Scotland)  Act,  1868,  31  &  32  Vict.  c.  101.  No  challenge  of  an  instru- 
ment on  the  ground  of  erasure  can  now  have  effect,  unless  it  is  averred 
and  proved  that  the  erasure  has  been  made  for  the  purpose  of  fraud, 
or  the  record  is  not  conformable  to  the  instrument  as  presented  for 
registration. 

Evidence. — As  to  evidence  by  writings,  the  Scotch  law  differs  from 
the  law  of  England  in  admitting  large  classes  of  writings  as  probative ; 
that  is  to  say,  as  writings  which  are  admitted  not  only  as  evidence  of 
having  been  duly  made  and  executed,  but  as  conclusive  until  tlie  writing 
is  reduced  or  set  aside  by  the  Court.  Such  are  all  deeds  executed  with 
the  proper  legal  formalities  (see  Deed),  also  holograph  writings,  i.e. 
writings  wholly  in  the  handwriting  of  and  signed  by  the  maker.  Under 
this  category  are  also  included  a  large  class  of  writings  in  ordinary  use 
in  commerce,  including  bills  of  exchange  and  promissory  notes,  and 
extracts  from  the  registers  of  probative  writs,  where  writs  of  this  class 
may  now  be  deposited.  Notarial  instruments  are  conclusive  evidence  of 
the  fact  of  which  they  are  the  direct  and  necessary  record.  So  are 
instruments  in  the  nature  of  returns  to  a  writ  by  officers  of  the  law, 
such  as  messengers-at-arms,  in  the  execution  of  diligence.  As  to  judicial 
records,  the  presumptions  are  similar  in  both  countries.  And  the 
statutory  provisions  as  to  the  proof  of  public  documents  are,  speaking 
generally,  similar. 

In  regard  to  the  admissibility  of  oral  evidence,  the  Scotch  rules 
differ  from  the  English  in  so  far  as  evidence  is  admissible  of  statements 
made  by  a  deceased  person.  The  latitude  with  which  the  rule  has 
been  sometimes  stated  is  much  narrowed  in  an  authoritative  exposition 
of  the  rule  by  the  learned  Lords  of  the  Committee  of  Privileges  in  The 
Lauderdale  Peerage  Case,  1885,  10  App.  Cas.  692,  and  The  Lovat  Peerage 
Case,  1885,  10  App.  Cas.  763. 

The  oath  of  reference  by  which,  on  failure  of  other  evidence,  the 
party  relying  on  a  fact  may  put  it  to  the  oath  of  the  other  party  to 
affirm  or  deny,  in  which  case  the  former  party  is  bound  by  the  answer, 
still  subsists  in  Scotch  procedure.  Prior  to  the  statute  16  Vict.  c.  20, 
it  was  the  only  means  whereby  the  evidence  of  the  opposite  party  could 
be  obtained.  It  is  now  seldom  used,  being  practically  superseded  by 
the  practice  of  putting  the  opponent  in  the  witness-box.  In  certain 
cases,  however,  it  is  the  only  admissible  evidence.     By  the  5th"  section 


SCOTLAND  171 

of  the  above  statute  it  was  expressly  provided  that  this  shall  not  have 
the  effect  of  a  reference  to  the  oath  of  the  party  so  adduced ;  and  this 
provision  seems  to  have  been  interpreted  so  as  to  avoid  the  usual  obser- 
vation which  such  a  proceeding  invites  in  England. 

JExcamhion  is  the  legal  term  for  an  exchange  of  land. 

Executor  is  the  legal  administrator  of  the  moveable  estate  of  a  deceased 
person.  The  office  of  executor  is  conferred  either  by  the  written  nomina- 
tion of  the  deceased,  or  by  decree  of  the  Court.  In  the  former  case  the 
executor  named  is  called  an  executor-nominate.  In  the  latter  case  he  is 
called  an  executor-dative.     His  title  is  completed  by  confirmation  (q.v.). 

Executry  is  the  moveable  (or  personal)  estate  of  a  deceased  person. 

Extract  is  the  authentic  copy  of  a  decree  of  the  Court  containing 
a  warrant  for  execution.  The  officer  whose  duty  it  is  to  authenticate 
the  extract  is  called  the  extractor.  The  extract  of  a  bond  or  obligation 
which  contains  a  consent  to  registration  for  execution  has  an  effect 
similar  to  the  extract  of  a  decree  properly  so  called.  The  term  extract 
is  also  applied  to  the  authentic  copy  of  a  probative  instrument  recorded 
for  preservation. 

Factor  is  the  term  applied  in  Scotland  to  a  general  agent,  and  the 
term  usually  implies  a  power  to  dispose  of  the  property  in  chattels,  as 
well  as  to  manage. 

Fee  and  Liferent. — The  full  and  unlimited  right  of  a  proprietor  is 
called  the  fee.  The  term  liferent,  i.e.  the  use  during  life  of  the  property, 
as  opposed  to  fee,  is  conceived  of  by  Scotch  law  as  a  usitfrv^t  or  servitude. 
These  rights  in  the  same  property  may  exist  at  the  same  time  in  difl'erent 
persons.  Where  property  is  by  marriage  settlement  directly  granted  to 
the  parent  in  liferent  and  to  the  children  to  be  born  of  the  marriage  in 
fee,  the  property  and  full  power  of  disposition  is  vested  in  the  parents, 
the  reason  commonly  assigned  being  that  the  fee  cannot  be  in  pendente. 
But  the  presumption  is  rebutted  if  the  liferent  is  qualified  by  the  word 
allenarly,  or  only,  for  then  the  parents  are  qiiasi-trustees  for  the  children. 
If  the  words  are  used  in  the  settlement  of  the  beneficial  interest  under 
a  trust,  the  presumption  is  different,  for  then  the  fee  is  vested  in  the 
trustees. 

Feu  is  the  holding  under  a  feudal  suijerior,  which  is  still,  strictly, 
the  tenure  of  most  lands  in  Scotland.  The  termfe^t  is  popularly  applied 
more  especially  to  the  perpetual  right  under  a  feu-charter  or  feu- 
contract  for  building  purposes,  under  which  a  substantial  ground  rent 
or  feu-duty  is  payable. 

Fiar  is  the  term  applied  to  the  person  holding  a  right  of  property 
burdened  with  a  liferent. 

Force  and  Fear  are  the  terms  equivalent  to  the  English  duress,  or 
such  compulsion  as  the  law  recognises  as  a  ground  for  repudiating  an 
apparent  contract. 

Forfeiture. — Forfeiture  is  the  loss  of  property  consequent  either  upon 
the  contravention  of  some  condition  on  which  the  property  is  held,  or 
upon  the  commission  of  certain  crimes.  The  English  Forfeiture  Act, 
1870, 33  &  34  Vict.  c.  23,  does  not  apply  to  Scotland,  and  forfeiture  still 
ensues  in  Scotland ;  as  to  moveables,  upon  sentence  of  death  and  upon 
conviction  of  certain  other  crimes  ;  and  as  to  heritage,  upon  a  conviction 
of  high  treason. 

Fm^isfamiliation  is  the  separation  of  a  child  from  the  family  of  his 
parents  under  such  circumstances  that  he  is  presumed  to  have  been 
satisfied  as  to  his  share  of  the  legitini  or  bairn's  part  of  the  moveable 


172  SCOTLAND 

estate.     In  the  usual  case  where  this  right  is  excluded  by  the  marriage 
contract,  the  term  is  of  no  legal  importance. 

Fugitation  is  the  technical  name  for  a  sentence  of  outlawry.  See 
Denunciation. 

Furthcoming  is  the  name  of  the  action  by  which  the  goods  attached 
by  an  arrestment  {q.v.)  are  made  available  to  the  arresting  creditor. 

Habit  and  Repute. — This  expression  is  used  in  the  law  of  Scotland 
to  indicate  whatever  is  held  and  reputed  or  generally  received  as  a 
matter  of  fact.  It  is  a  recognised  aggravation  of  the  crime  of  theft  if 
the  prisoner  is  proved  to  be  "  habit  and  repute  "  a  thief.  This  evidence 
is  given  before  the  case  is  left  to  the  jury,  although  the  jury  are  usually 
directed  not  to  take  it  into  account  unless  they  are  satisfied  upon  the 
evidence  as  to  the  primary  charge.  Marriage  may  be  constituted  by 
habit  and  repute,  i.e.  where  the  parties  cohabit  and  are  generally 
regarded  as  man  and  wife. 

Hamemicken  is  the  crime  of  assaulting  a  person  within  his  dwelling- 
place,  the  house  having  been  entered  with  the  intent  to  commit  the 
assault.  A  shop  or  other  premises  adjoining  the  house  where  he  lives 
are  not  reckoned  the  dwelling-place  for  this  purpose. 

Heir  is  a  term  of  flexible  meaning.  It  may  comprise  the  person 
entitled  to  the  succession  in  moveable  (or  personal)  estate  as  well  as  the 
heir  (strictly  speaking)  who  is  entitled  to  succeed  in  tlie  heritable  estate. 
It  means  also  the  heir  by  destination  in  a  deed.  But  in  its  primary 
sense  the  word  heir  is  used  to  indicate  the  successor  in  heritage  in  the 
estate  of  the  ancestor. 

Herald. — See  Lyon-King-at-Arnis. 

Heritable  and  moveable  is  the  distinction  in  property  analogous  to 
that  of  real  and  personal  estate  in  English  law.  Generally  speaking,  all 
rights  in  or  connected  with  land  are  heritable,  and  all  other  rights  are 
moveable.  There  are,  however,  exceptions  to  this  rule.  Heritable 
securities,  or  debts  secured  over  land,  were  formerly  considered  heritable 
property  ;  but  by  the  Titles  to  Land  Consolidation  (Scotland)  Act,  1868, 
31  &  32  Vict.  c.  101,  s.  117,  they  are  made  moveable,  subject  to  certain 
qualifications.  Leases  of  land  are  still  heritable,  for  the  purposes  of 
succession. 

Holograph  Writings  are  writings  which  are  wholly  or  in  the  essential 
parts  in  the  handwriting  of  the  maker,  and  subscribed  by  him.  These 
are  given  effect  to  as  probative  writings.     See  Evidence. 

Homologation  is  a  term  used  to  express  the  effect  of  an  act  done  by 
a  person  under  an  instrument  which  is  in  itself  defective  or  informal, 
so  that  this  person  is  afterwards  precluded  from  setting  up  the  defect 
or  informality  as  an  objection  to  the  instrument. 

Hypotluc  is  a  security  which  a  creditor  has  over  a  subject  in  the 
debtor's  possession.  Formerly  the  landlord's  hypothec  for  rent  was  an 
important  element  of  the  economic  system  in  Scotland ;  but  this  right 
has  now  been  abolished  in  regard  to  agricultural  farms  above  two  acres 
in  extent  (Hypothec  Abolition  (Scotland)  Act,  1880,  43  Vict.  c.  12). 

Infeftnunt  is  the  legal  seisin  in  land,  which  is  now  effected  by 
registration  of  the  conveyance,  or  other  instrument  of  title,  in  the 
appropriate  Kegister  of  Sasines. 

Inhibition  is  a  proceeding  by  which  a  debtor  is  restrained  from 
creating  any  right  or  security  over  his  land  to  the  prejudice  of  the 
inhibiting  creditor.  Inhibitions  are  published  in  a  register,  and 
may  be  discovered  by  an  intending  purchaser  on  making  the  usual 
searches. 


SCOTLAND  173 

Insanity. — The  judicial  inquiry  into  the  various  conditions  which 
may  be  regarded  under  this  head  was  formerly  conducted  under  a  writ 
called  a  brieve  of  cognition  directed  to  the  judge  ordinary  of  the  bounds 
within  which  the  person  resided.  This  has  been  superseded,  under  the 
Court  of  Session  Act,  1868,  31&32  Vict.  c.  100,  s.  101,  by  a  more  simple 
writ  directing  an  inquiry  "  whether  the  person  sought  to  be  cognosced 
is  insane,  who  is  his  nearest  agnate,  and  whether  such  agnate  is  of  lawful 
age."  The  purpose  of  placing  the  estate  under  guardianship  is,  however, 
more  commonly  accomplished  by  the  judicial  appointment  of  a  curator 
bonis.  The  chief  Scotch  statutes  relating  to  this  subject  are  the  Lunacy 
(Scotland)  Act,  1857,  20  &  21  Vict.  c.  71 ;  the  Lunacy  (Scotland)  Act, 
1862, 25  &  26  Vict.  c.  54 ;  the  Lunacy  (Scotland)  Act,  1866,  29  &  30  Vict, 
c.  51 ;  the  Criminal  and  Dangerous  Lunatics  (Scotland)  Amendment 
Act,  1871,  34  &  35  Vict.  c.  55  ;  and  the  Lunacy  Districts  (Scotland)  Act, 
1887,  50  &  51  Vict.  c.  39. 

Interdict  is  an  order  of  the  Court  in  the  nature  of  an  injunction. 

Interdiction  is  a  partial  restraint  which  the  Scotch  law  permits  to  be 
placed  upon  persons  who,  from  a  weakness  or  facility  of  disposition — 
not  amounting  to  insanity — are  in  danger  of  dissipating  their  property. 
The  restraint  may  be  judicial,  upon  evidence  of  the  facility ;  or  it  may 
be  imposed  by  the  voluntary  bond  of  the  person  himself,  given  to  persons 
called  interdictors.  The  bond  or  order  of  the  Court,  as  the  case  may 
be,  is  registered  in  the  Register  of  Inhibitions ;  and  that  being  done, 
any  subsequent  deed  made  without  consent  of  the  interdictors  is  liable 
to  be  reduced  or  set  aside  if  it  is  shown  to  be  prejudicial  to  the 
estate. 

Interlocutor  is  a  judgment  pronounced  in  a  cause.  The  term,  strictly 
speaking,  indicates  a  judgment  which  does  not  finally  dispose  of  the 
action;  but  it  is  indiscriminately  applied  to  every  kind  of  judgment 
whether  on  action  or  petition. 

Judicial  Factor  is  a  factor  or  administrator  of  an  estate  appointed  by 
the  Court  on  petition.  The  Court  will  appoint  a  judicial  factor  in  all 
cases  where  the  estate  is  in  danger  of  being  wasted  for  want  of  a  person 
having  the  legal  and  actual  capacity.  According  to  circumstances,  the 
factor  is  called  factor  loco  tutoris,  loco  ahsentis,  or  curatoi'  bonis.  All  these 
judicial  factors  are  placed,  by  the  Judicial  Factors  Act,  1889,  52  &  53 
Vict.  c.  39,  under  the  supervision  of  the  Accountant  of  Court. 

t7w5  administrationis. — See  Jus  mariti. 

Ju^  mariti  is  the  right  by  which  the  husband  acquired  to  himself 
absolutely  the  moveable  property  of  his  wife.  It  is  abolished  by  the 
Married  Women's  Property  (Scotland)  Act,  1881,  44  &  45  Vict.  c.  21,  so 
far  as  relates  to  persons  married  after  the  passing  of  the  Act  (18th  July 
1881).  It  is  distinct  from  the  husband's  right  of  administration  (jm 
administrationis)  which,  so  far  as  it  may  be  used  to  prevent  the  wife 
alienating  the  corpus  of  her  property,  is  retained  by  the  Act. 

t7w5  relictce  is  the  share  to  which  a  widow  is  entitled  out  of  the 
moveable  estate  of  her  deceased  husband,  without  regard  to  his  will. 
See  Dead's  Part. 

Jus  supervenient. — See  Accretion. 

Justiciary,  Court  of,  is  the  supreme  Criminal  Court  of  Scotland.  By 
the  Criminal  Procedure  (Scotland)  Act,  1887,  50  &  51  Vict.  c.  35,  s.  44, 
all  the  Senators  of  the  College  of  Justice  are  Lords  Commissioners  of 
Justiciary. 

Lawburrows  was  the  title  of  a  writ  having  the  objeqt  of  compelling 


174  SCOTLAND 

a  person  to  find  security  that  the  complainer  should  receive  no  violence 
from  him.  The  "  letters  of  lawburrows  "  were  superseded  by  a  simpler 
proceeding  by  application  to  the  sheriff,  or  a  justice  of  the  peace,  under 
the  Civil  Imprisonment  (Scotland)  Act,  1882,  45  &  46  Vict.  c.  42,  s.  6, 
similar  to  the  English  proceeding  for  binding  over  a  person  to  keep  the 
peace. 

Legiiim  is  the  term,  borrowed  in  recent  times  from  the  Roman  law, 
to  express  the  bairii's  part  or  share  of  gear  or  moveable  estate  of  their 
deceased  father  which  under  the  old  customs  belonged,  and  unless 
renounced  or  barred  by  marriage  contract  still  belongs,  to  the  children. 
By  the  Married  Women's  Property  (Scotland)  Act,  1881,  44  &  45  Vict. 
c.  21,  the  right  to  legitim  was  extended  to  the  moveable  estate  of  a 
deceased  mother.     See  Dead's  Part. 

Legitimation  of  a  child  born  out  of  wedlock  of  parents  between  whom 
there  was  no  legal  impediment  to  a  marriage,  takes  place  by  the  subse- 
quent marriage  of  the  parents.  A  remarkable  instance  will  be  found  in 
The  Lauderdale  Peerage  Case,  1885,  10  App.  Cas.  692,  where  it  was  held 
that  a  child  might  be  legitimated  by  a  marriage  on  deathbed. 

Lesion  is  the  technical  term  for  the  prejudice  to  the  estate  which,  in 
cases  of  minority  or  other  partial  incapacity,  gives  ground  for  reducing 
or  setting  aside  a  deed. 

Liferent. — See  Fee  and  Liferent. 

Lyon-King-at-Arms  is  the  principal  officer  of  arms  in  Scotland,  and 
corresponds  in  this  respect  to  Garter  in  England.  He  takes  the  title  of 
Lyon  from  the  armorial  bearing  of  the  Scottish  Kings — the  lion  rampant. 
The  officers  serving  under  him  are  heralds,  pursuivants,  and  messengers. 

Ma£er. — The  macers  are  servants  of  the  Court,  and  are  charged  with 
the  duties  of  ushers,  the  preservation  of  silence,  and  attendance  upon 
the  judges.  They  attend  upon  the  Courts  of  Session,  Teinds,  and 
Justiciary. 

Maills  and  Duties  is  a  technical  expression  for  rents,  whether  in 
money  or  in  grain,  employed  in  various  instruments  and  judicial 
proceedings,  e.g.  Action  of  Maills  and  Duties. 

Mandatary,  in  judicial  proceedings.  Where  a  party  to  an  action  is 
abroad,  the  Court  has  a  discretion,  on  the  application  of  the  other 
party,  to  require  the  absent  party  to  sist  a  mandatary,  i.e.  a  person  in 
this  country  who  becomes  responsible  for  the  conduct  of  the  cause,  and 
for  any  costs  which  may  be  awarded  against  his  principal.  A  pursuer 
resident  abroad  is  usually  required  to  sist  a  mandatary.  Formerly  a 
pursuer  resident  in  England  or  Ireland  might  be  required  to  do  so ;  but 
this  is  not  now  the  case,  since  by  the  Judgments  Extension  Act,  1868, 
31  &  32  Vict.  c.  54,  the  Scotch  decree  may  be  enforced  in  England  or 
Ireland. 

Marriage,  according  to  Scotch  law,  is  constituted  by  consent.  In 
point  of  form,  marriages  are  regular  or  clandestine.  A  regular  marriage 
is  celebrated,  after  due  proclamation  of  banns,  by  a  minister  of  religion 
— of  what  denomination  is  immaterial.  Marriages  not  so  celebrated  are 
clandestine.  Although  the  simple  consent  de  prcesenti  of  the  persons  to 
be  man  and  wife  constitutes  that  relation,  this  statement  must  be  taken 
subject  to  certain  rules  of  evidence  which,  in  effect,  enter  into  the 
essence  of  a  valid  marriage.  1.  The  consent  may  be  proved  by  wit- 
nesses present  when  the  parties  have  by  serious  words  and  acts  declared 
their  consent.  And  the  evidence  of  a  witness  present  at  the  ceremony 
may  be  made  use  of,  after  the  decease  of  that  witness,  by  the  evidence 


SCOTLAND  175 

at  second-hand  of  a  survivor  who  has  heard  the  actual  witness  relate 
the  circumstance.  2.  The  consent  may  be  proved,  by  the  writing  of  the 
parties,  or  of  either  party  charged  in  any  legal  proceedings  by  the  other 
for  declaring  the  relation.  .3.  Or  it  may  be  proved  by  the  oath  of  the 
party  charged,  on  his  being  examined  as  a  witness  in  the  action,  or  on 
the  matter  being  referred  to  his  oath.  4.  Where  a  man  has  promised 
to  marry  a  woman  who,  on  the  faith  of  the  promise,  has  yielded  her 
person,  the  promise  raises  the  presumption  of  a  consent  de  prcesenti ;  but 
for  the  purpose  of  thus  establishing  a  marriage,  the  promise  must  be 
proved  by  the  writing  or  oath  of  the  man  charged  with  it.  5.  Marriage 
may  be  proved  by  long  and  unquestioned  married  repute,  raising  the 
presumption  that  other  sufficient  evidence  has  existed  and  been  lost. 

The  rights  of  property  consequent  upon  marriage  are  profoundly 
modified  by  the  Married  Women's  Property  (Scotland)  Act,  1881,  44  & 
■  45  Vict.  c.  21.  The  husband's  marital  right  is  confined  to  so  much  of 
the  "  right  of  administration  "  as  prevents  the  wife  alienating  the  corpiis 
of  property  without  his  consent.  This  right  may  be  renounced  by 
marriage  settlement.  See  also  Jiis  mariti;  Jus  relictce ;  Terce ;  Dead's 
Part;  Divorce;  Desertion. 

Meditatio  fugce  is  a  ground  upon  which  a  creditor  may  apply  for  a 
warrant  to  apprehend  the  debtor  for  examination,  upon  the  result  of 
which  he  may  be  liable  to  be  imprisoned  until  he  gives  security  judicio 
sisti — that  is  to  say,  for  his  personal  appearance  in  Court,  for  the 
purposes  of  judgment  being  obtained  in  an  action.  The  application  is 
somewhat  similar  to  the  application  for  a  writ  ne  exeat  regno  in  England. 

Messenger-at-Arms  is  an  officer  appointed  by  the  Lyon-King-at-Arms, 
for  serving  writs  and  executing  decrees  of  the  Court. 

Minor. — This  term  is  applied  generally  to  persons  under  the  age  of 
twenty-one  years ;  but  more  especially — as  distinguished  from  jnipU — to 
persons  who  have  attained  the  age  of  puberty  (twelve  in  females  and 
fourteen  in  males),  and  are  under  the  age  of  twenty-one  years.  They 
are  considered  capable,  with  the  consent  of  curators  if  they  have  any,  of 
executing  deeds ;  but  their  deeds  are  liable  to  be  set  aside  if  prejudicial. 
See  Quadriennium  utile. 

Mora  is  the  term  used  for  undue  delay  in  the  completion  of  an 
inchoate  bargain  or  the  prosecution  of  diligence,  the  legal  effect  of 
which  is  to  liberate  the  contracting  parties  or  to  bar  diligence.  For 
instance,  the  seller  of  goods,  who  unduly  delays  delivery,  is  liable  for 
accident  to  the  goods,  although  in  the  ordinary  course  of  things  the  risk 
passed  to  the  buyer  by  the  contract. 

Mournings  suitable  to  the  estate  of  the  deceased  form  a  legal  claim 
against  the  estate  on  behalf  of  the  widow  and  children. 

Moveable  JEstate  is  the  proper  term  for  that  part  of  the  estate  of  the 
deceased  which  does  not,  in  absence  of  other  disposition,  descend  to  the 
heir.     See  Heritable  and  Moveable. 

Multiplepoinding  is  an  action  similar  to  an  interpleader  action  in 
England,  whereby  the  claims  of  competitors  to  a  fund  in  the  hands  of  a 
neutral  holder  are  determined  and  the  holder  discharged. 

Mobile  Ojfficiuiii. — This  term  is  not  capable  of  any  exact  definition. 
It  is  an  equitable  power  vested  in  the  Court  of  Session  by  virtue  of 
which  it  interposes  to  modify  or  abate  the  rigour  of  the  law,  and  to  give 
aid  where  no  remedy  could  be  obtained  in  a  Court  confined  to  strict 
law. 

Notary  Public  is  an  officer  of  the  law  whose  chief  function  is  to  act 


176  SCOTLAND 

as  a  witness  of  any  solemn  or  formal  act,  his  certificate  being  accepted 
as  sufficient  evidence  of  acts  done  in  his  presence  and  attested  by  him. 
Formerly  he  had  important  functions  in  carrying  out  the  elaborate 
machinery  for  completing  and  recording  the  seisin  (or  legal  title)  in 
land.  He  is  admitted  to  the  office  by  the  Court  of  Session,  after  certain 
preliminaries  as  to  examination,  etc. 

Oversman  is  the  technical  word  for  an  umpire. 

Poinding  is  the  species  of  diligence  or  execution  whereby  the 
corporeal  moveables  of  the  debtor  are  seized  by,  and  the  property  in 
them  transferred  to,  the  creditor. 

Poinding  of  the  Ground  is  a  peculiar  species  of  diligence  or  execution, 
whereby  a  superior  or  a  creditor  in  a  heritable  security  over  land  may 
attach  the  moveables  upon  the  ground  in  payment  of  his  debt.  The 
proceedings  commence  by  raising  an  action  of  poinding  of  the  groiind. 

Prccpositura  of  a  Wife  is  a  term  applied  to  the  presumed  authority 
which  she  has,  while  living  in  family  with  her  husband,  of  managing  the 
household  affairs  of  the  family  and  in  virtue  of  which  debts  contracted 
by  her  are  effectual  against  her  husband.  The  presumption  may  be  put 
an  end  to,  so  far  as  relates  to  any  individual  tradesman,  by  notice  given 
to  him  by  the  husband ;  or  as  regards  persons  generally,  by  a  particular 
kind  of  inhibition  carried  out  in  a  similar  way  to  the  inhibition  against 
a  debtor.  See  Inhibition,  sup'a.  This  will  not,  however,  avoid  the 
husband's  liability  for  necessaries  supplied  to  the  family. 

Precognition  is  a  term  applied  in  criminal  and  civil  cases  to  the 
preliminary  examination  of  the  persons  who  can  speak  to  the  facts.  In 
criminal  cases  this  examination  is  conducted  ex  parte  by  the  procurator- 
fiscal,  reduced  into  writing,  and  signed  by  the  witnesses.  It  is  some- 
times taken  on  oath  before  the  sheriff  or  a  justice  of  the  peace.  In 
civil  cases,  the  precognition  is  taken  by  the  agent  of  the  party. 

Prescription  is  a  method  both  of  acquiring  and  of  losing  a  right  by 
length  of  time.  The  term  is  applied  to  prescription  properly  so  called, 
and  to  limitation  of  actions.  1.  The  positive  prescrijjtion,  as  it  is  called, 
gives  an  unchallengeable  title  where  land  has  been  held  for  twenty 
years  on  an  ex  facie  valid  irredeemable  title  recorded  in  the  appropriate 
register.  Mere  possession  of  land,  however  long,  does  not  give  a  title. 
2.  The  negative  prescription  extinguishes  in  forty  years  obligations  of 
the  most  formal  kind,  unless  kept  alive  by  part  payment  or  by  payment 
of  interest.  3.  There  are  various  so-called  lesser  prescriptions : — (1)  The 
vicennial   prescription   of   debts,   constituted   by   holograph   writings ; 

(2)  the  decennial  prescription  of  actions  against  tutors  and  curators ; 

(3)  the  septennial  prescription  of  cautionary  obligations  {i.e.  obligations 
expressly  made  by  way  of  security  for  another);  (4)  the  sexennial 
prescription  of  bills  and  promissory  notes ;  (5)  the  quinquennial 
prescription  of  agricultural  rents,  bargains  concerning  moveables,  and 
inhibitions ;  (6)  the  triennial  prescription  applying  to  house  rents, 
merchants'  accounts,  "  and  other  the  like  debts." 

Procurator-Fiscal  is  the  officer  charged  with  the  investigation  and 
prosecution  of  crime  within  his  district.  He  is  appointed  by  the  Lord 
Advocate. 

Prorogation  of  jurisdiction  is  the  term  applied  to  the  extension  of 
jurisdiction  in  a  particular  case  to  a  judge,  otherwise  incompetent,  by 
consent,  express  or  tacit,  of  the  parties. 

Pupil  is  the  term  applied,  as  expressive  of  their  incapacity,  to  persons 
under  the  age  of  fourteen  in  the  case  of  males,  or  twelve  in  the  case  of 
females. 


SCOTLAND  177 

Pursuivant. — See  Lyon- King -at- A  rms. 

Quadriennium  utile  is  the  period  of  four  years  allowed  after  majority 
within  which  deeds  granted  by  a  minor  {q.v.)  to  his  prejudice  may  be 
reduced  or  set  aside. 

Batification  of  a  deed  executed  by  a  wife  is  a  declaration  made  by  her, 
in  presence  of  a  justice  of  the  peace  or  other  judge  (and  in  the  absence 
of  her  husband),  that  the  deed  is  made  freely,  and  that  she  has  not  been 
induced  to  make  it  by  her  husband  through  force  or  fear.  It  is  sufficient 
to  obviate  any  presumptive  evidence  of  compulsion,  though  it  is  ques- 
tionable whether  it  would  be  sufficient  to  support  a  deed  in  the  face  of 
positive  evidence  of  violence. 

Reclaiming  Note  is  the  document  lodged  for  appealing  to  the  Inner 
House  against  an  interlocutor  or  decision  of  the  Lord  Ordinary,  or  judge 
of  first  instance. 

Reduction  is  the  form  of  action  for  setting  aside  or  declaring  to  be 
null  a  deed  or  other  instrument  which  has  on  the  face  of  it  some  legal 
effect.  Where  forgery  is  the  ground  alleged,  the  action  is  called  an 
action  of  reduction  improbation. 

Registration  of  Deeds  is  competent  in  Scotland  for  three  different 
objects : — (1)  For  Preservation ;  (2)  for  Execution ;  and  (3)  for  Publi- 
cation. Deeds  registered  for  preservation  are  retained  in  the  registry, 
and  an  extract  or  authentic  copy  when  given  out  is  of  equal  validity  as 
evidence  with  the  deed  itself,  unless  the  deed  is  challenged  in  an  action 
of  reduction.  When  a  deed  is  registered  for  execution,  the  extract  given 
out  has  the  effect  of  a  judgment  with  a  warrant  for  execution.  A  deed 
may  be  registered  for  preservation  which  is  not  intended,  and  may  not 
be  competent,  to  be  registered  for  execution.  But  both  purposes  are 
effected  by  one  register.  The  registration  for  publication  is  a  different 
thing  altogether.  It  applies  to  instruments  relating  to  the  legal  title  in 
land,  and  the  object  is  to  give  notice  to  intending  purchasers  as  to  the 
state  of  the  title.  No  person  can  be  seised  of  land,  or  have  a  good  legal 
title  to  an  interest  in  land,  until  the  conveyance  under  which  he 
acquires  title  is  registered.  So  also  the  heir,  before  he  is  fully  vested 
with  the  legal  estate,  must  complete  his  title  by  a  registered  instrument. 

Rei  interventus  is  something  done  on  the  faith  of  a  bargain,  and  raises 
a  personal  exception  which  excludes  the  plea  of  locus  pcenitentim.  It  has 
been  defined  as  "  any  proceedings  not  unimportant  on  the  part  of  the 
obligee  known  to  and  permitted  by  the  obligor  to  take  place  on  the  faith 
of  the  contract  as  if  it  were  perfect,  provided  they  are  unequivocally 
referable  to  the  agreement  and  productive  of  alteration  of  circumstances, 
loss,  or  inconvenience,  though  not  irretrievable."  It  has  a  similar  effect 
to  part  performance  in  England. 

Retention  is  the  name  used  in  Scotland  for  the  right  corresponding 
to  the  English  lien.  It  so  far  differs  from  lien  in  that  it  is  sometimes 
applied  to  the  right  of  a  person  to  retain  possession  of  a  thing  in  which 
he  has  the  property,  but  (subject  to  the  right  of  retention)  is  under  an 
obligation  to  give  up  the  possession. 

Sale  (of  goods). — The  law  in  regard  to  the  sale  of  goods  is  now 
codified  by  the  Sale  of  Goods  Act,  1893,  56  &  57  Vict.  c.  71.  This  Act 
introduced  some  important  changes  into  the  law  of  Scotland.  The 
property  in  goods  may  now  pass  to  the  purchaser  irrespective  of 
delivery. 

Sale  (of  land)  can  only  be  made  binding  by  a  probative  writing ;  but 
where  there  has  been  a  contract  in  writing,  although  not  probative  {i.e. 
VOL.  XIIL  12 


178  SCOTLAND 

signed  before  witnesses,  or  by  signed  holograph  writing),  it  may  be  made 
binding  by  rei  intervmittis  {q.v.). 

Salmon-fishing. — The  right  of  salmon-fishing,  whether  in  rivers, 
estuaries,  or  on  the  seaeoast,  is  said  to  be  inter  regalia;  and  a  valid 
right  to  it  can  only  be  constituted  by  a  grant  from  the  Crown.  A 
grant  of  land  cum  piscationibits  may  be  interpreted  to  include  salmon- 
fishing,  if  there  has  been  possession  for  the  prescriptive  period.  For 
this  purpose,  where  the  right  was  capable  of  being  more  profitably 
exercised  by  means  of  net  and  coble,  rod-fishing  has  been  considered 
not  a  sufficiently  clear  assertion  of  right  to  amount  to  prescriptive 
possession.  There  are  various  statutes  relating  to  salmon-fishing,  of 
which  the  principal  are — The  Salmon  Fisheries  (Scotland)  Act,  1862, 
25  &  26  Vict.  c.  97 ;  the  Salmon  Fisheries  (Scotland)  Act,  1868,  31  &  32 
Vict.  c.  123. 

Sea  Fisheries. — A  Fishery  Board  was  constituted  for  Scotland  by  the 
Fishery  Board  (Scotland)  Act,  1882,  45  &  46  Vict.  c.  78.  It  consists 
of  seven  members,  who  are  appointed  by  the  Crown.  Sea  fisheries  are 
regulated  by  a  series  of  statutes,  the  most  important  of  which  are  the 
Sea  Fisheries  Acts  of  1868,  1875,  1883,  1885,  and  1895,  the  two  last- 
mentioned  Acts  being  specially  applicable  to  Scotland. 

Searches  of  incumbrances  are  made  from  the  registers  by  official 
searchers,  for  the  information  of  intending  purchasers  of  land  or  lenders 
on  heritable  security.  The  search,  to  be  complete,  must  be  continued 
down  to  the  time  of  recording  the  purchaser's  conveyance,  and  should 
extend  back  for  a  period  of  forty  years.  In  the  case  of  money  being 
lent,  where  the  borrower  is  suspected  of  being  in  embarrassed  circum- 
stances, the  lender  will  be  advised  to  protect  himself,  by  consignation 
of  the  money  or  otherwise,  until  the  bond  is  recorded  and  the  search 
completed. 

Secretary  for  Scotland. — This  office  was  revived  by  the  Secretary  for 
Scotland  Act,  1885,  48  &  49  Vict.  c.  61.  Further  powers  are  conferred 
on  the  Secretary  for  Scotland  by  the  Secretary  for  Scotland  Acts,  1887, 
50  &  51  Vict.  c.  52,  and  1889,  52  «&  53  Vict.  c.  16. 

Sequestration  is  the  term  applied  in  Scotland  to  the  administration 
of  an  estate  in  bankruptcy  (q.v.). 

Service  (of  an  heir)  is  the  process  adopted  to  complete,  by  judicial 
authority,  the  title  of  the  heir  to  the  estate  of  his  ancestor.  It  is  now 
carried  out  by  a  petition  to  the  sheriff  (instead  of  the  brieve  or  writ 
similar  to  the  old  English  writ  of  inquisition  post  mortem),  the  judgment 
or  decree  on  which,  being  extracted  and  recorded  in  the  Kegister  of 
Sasines,  completes  the  title. 

Sheriff. — The  judicial  functions  of  this  official  (in  Scotland)  have 
expanded  so  much  that  it  is  difficult  at  first  sight  to  recognise  the 
identity  of  the  office  with  that  of  the  sheriff  in  England.  The  sheriff' 
is  the  chief  local  judge  of  the  county,  and  has  extensive  jurisdiction  in 
civil  and  criminal  causes.  In  civil  causes  his  jurisdiction  has  been  largely 
extended  by  the  Sheriff  Courts  Act,  1907.  The  criminal  jurisdiction  of 
the  sheriff  theoretically  extends  to  the  trial  of  all  crimes  which  do  not 
infer  death  or  banishment;  but  practically  his  criminal  jurisdiction 
is  limited  by  the  circumstance  that  he  cannot  inflict  sentence  of  penal 
servitude.  The  ministerial  duties  of  the  sheriff  comprise  the  returning 
of  juries,  and  the  execution  of  writs  from  the  Exchequer,  and  of  writs 
for  electing  members  of  Parliament.  But  the  ordinary  writs  of  the 
Court  of  Session  are  executed  by  another  class  of  officers,  called  mes- 


SCOTLAND  179 

sengers-at-arms.  The  sheriffs  are  bound  personally  to  attend  the  judges 
on  circuit. 

Sheriff- Substitute  is  a  judge  invested  with  practically  all  the  powers 
and  duties  of  the  sheriff.  He  is  permanently  resident  within  his 
sheriffdom,  and,  speaking  generally,  does  the  work  coming  before  the 
judge  in  the  first  instance,  his  judgments  being  subject  to  review  by 
the  sheriff,  who  usually  resides  in  Edinburgh,  and  practises  as  an  advocate 
at  the  Scottish  Bar. 

Singular  successor  is  a  word  applied  in  Scotland  in  contradistinction 
to  heir,  much  as  the  word  purchaser  is  technically  used  in  English  law. 

Small  Debts. — SmaU  debt  jurisdictions  are  constituted  and  regulated 
for  Scotland  by  the  Small  Debt  (Scotland)  Acts,  1837  to  1889,  and  by 
the  Sheriff  Courts  Act,  1907.  By  the  last-mentioned  Act  the  juris- 
diction of  the  Small  Debt  Court  is  extended  to  causes  not  exceeding 
£20  in  value. 

Soumiug  and  Rouming  is  the  name  of  an  action  for  ascertaining  the 
number  of  cattle  which  the  several  persons  having  rights  of  pasturage 
over  a  common  are  entitled  to  put  upon  the  common. 

Spuilzie  is  a  technical  word  for  the  injury  to  a  person  by  wrongfully 
taking  away  his  moveable  goods.  It  corresponds  to  ejection  and  intrusion 
in  heritage. 

Substitution  is  the  word  used  to  express  the  nomination  of  a  new 
stock  in  a  series  of  simple  destinations.     See  Destination  ;  Entail. 

Summons  is  a  writ  summoning  a  defender  to  attend  the  Court  men- 
tioned therein  to  answer  the  demand  made  on  him. 

Superior  and  Vassal  are  persons  related  under  a  feudal  obligation. 
A  superior  is  a  person  who  has  made  an  original  grant  of  heritable 
property,  under  condition  that  the  grantee  shall  annually  pay  to  him  a 
■certain  sum  of  money  or  perform  certain  sei'vices.  The  grantee  is  termed 
the  vassal. 

S^cspension  is  a  process  for  staying  execution  on  a  sentence  or 
decree. 

Tacit  relocaiion  is  the  implied  renewal  of  a  tenancy,  if  due  warning  to 
remove  be  not  given,  and  the  tenant  is  allowed  to  continue  his  tenancy 
without  any  new  agreement  being  entered  into.  This  implication  arises 
if  notice  be  not  given  by  either  party  at  a  certain  period  before  the  stipu- 
lated expiration  of  a  lease.  The  doctrine  of  tacit  relocation  has  by 
analogy  also  been  applied  to  a  contract  of  service,  and  in  exceptional 
circumstances  to  the  continuance  of  a  partnership  after  expiry  of  the 
original  contract. 

Terce  is  the  legal  liferent  of  the  wife  in  one-third  of  the  heritage  in 
which  her  husband  dies  infeft  (or  seised).  It  may  be  excluded  by  ante- 
nuptial contract  of  marriage ;  or  other  deed  in  which  a  suitable  provision 
is  made  in  lieu  of  terce. 

Terms. — The  legal  terms  of  Whitsunday  and  Martinmas  are  the  15th 
May  and  the  11th  November.  Interest  on  money  secured  by  bond,  or 
bond  and  disposition  in  security  in  the  usual  form,  becomes  payable  on 
these  dates.  Where  the  term  of  entry  to  or  removal  from  a  house  is 
Whitsunday  or  Martinmas,  this  is  by  statute  (49  &  50  Vict.  c.  50)  inter- 
preted to  be  28th  May,  or  28th  November  (as  the  case  may  be).  But 
where  warning  to  remove  is  required  forty  days  before  Whitsunday 
•or  Martinmas,  it  must  be  given  forty  days  before  15th  May  or 
11th  November. 

Testing  Clause  is  the  name  given  to  the  attestation  clause  to  a  deed 


180  SCRIVENER 

or  will.  Formerly  it  was  very  special.  Now  it  generally  mentions  the 
number  of  pages  of  the  deed,  the  name  and  designation  of  the  writer, 
the  fact  of  subscription,  date  and  place  of  execution,  the  names  and 
designations  of  the  witnesses  and  any  special  circumstances  as  to  the 
alterations  of  the  engrossment  before  execution.  The  testing  clause 
is  not  now,  however,  absolutely  essential,  if  the  deed  is  in  fact  executed 
and  attested  by  the  grantor  subscribing  each  page  or  sheet,  and  by 
the  witnesses  subscribing  on  the  last  page,  with  their  descriptions,  by 
occupation  and  residence,  added  to  their  names.     See  Deed. 

Triists. — The  practice  in  Scotch  law  differs  in  the  circumstance  that 
securities  are  commonly  taken  by  trustees  expressly  in  that  character ; 
and  so  long  as  the  succession  of  trustees  is  carried  on  strictly  in  the 
terms  of  the  trust,  the  title  of  the  trustees  is  commonly  accepted  by 
strangers,  without  any  reference  to  the  beneficial  provisions  contained 
in  the  trust.  This  system  of  dealing  with  trustees  as  a  quasi-coiyorate 
body,  does  not  prevent  trustees  being  personally  liable. 

Tutors  are  persons  who,  failing  the  father  (or  mother,  under  the 
Guardianship  of  Infants  Act,  1886),  represent  the  person  of  a  pupil 
(i.e.  a  person  under  fourteen  years  of  age  if  a  male,  or  under  twelve 
if  a  female),  for  all  legal  purposes.  Tutors  may  be  either  iwmiiiate^ 
i.e.  named  by  the  father,  or,  in  certain  circumstances,  by  the  mother, 
or  dative,  i.e.  appointed  by  the  Court. 

WUl. — By  the  law  of  Scotland  a  will  is  well  executed  if  it  is 
executed  according  to  the  law  of  the  place  of  execution.  And  since 
by  the  Titles  to  Land  Consolidation  (Scotland)  Act,  1868,  a  will  is 
given  effect  to  as  a  disposition  of  heritage,  it  is  unnecessary  for  a  testator 
anywhere  to  trouble  himself  about  the  law  of  Scotland,  so  far  as  relates 
to  the  form  of  execution.  He  will  do  well,  however,  to  bear  in  mind 
that  the  rule  of  interpretation  of  the  will  is  primd  facie  the  law  of  the 
country  of  his  domicile. 

[Aiithoi'ities. — Stair's  Institutions  ;  Erskine's  PHnciples ;  Erskine's- 
Institutes ;  Bell's  PHnciples ;  Bell's  Commentaries ;  Eraser  on  Husband 
and  Wife ;  Eraser  on  Fareut  and  Child,  etc. ;  M'Laren  on  Wills  and 
Succession ;  Mackay's  Practice  of  the  Court  of  Session ;  Menzies'  Lectures 
on  Conveyancing ;  Bell's  Lectures  on  Conveyancing  ;  "Wood's  Lectures  07i 
Conveyancing ;  Macdonald  on  Criminal  Law ;  Hume  on  Crimes ;  Alison 
on  Criminal  Law.] 

Scrivener. — A  scrivener  was  a  person  whose  business  consisted 
in  receiving  deposits  of  money  to  be  invested  on  behalf  of  the  depositors 
when  an  opportunity  for  laying  it  out  to  advantage  should  arise,  the 
scrivener  in  the  meantime  having  the  use  of  the  money,  and  not  being 
accountable  for  any  profit  he  might  make  until  it  was  invested.  The 
business  of  a  scrivener  was  often  united  with  that  of  an  attorney,  in 
which  case  he  would  prepare  the  securities,  and  make  an  additional 
charge  for  doing  so  over  and  above  the  commission  for  procuring  the 
investment.  But  an  attorney  was  not  deemed  to  carry  on  the  business 
of  a  scrivener  merely  because  on  particular  occasions  he  incidentally 
had  moneys  of  his  clients  to  lay  out  on  their  behalf,  if  he  did  not  act  as 
a  general  depositary  of  moneys  for  investment  (see  Adams  v.  Malkin, 
1814,  3  Camp.  (N.  P.)  534;  Hutchinson  v.  Gascoirjne,  1817,  Holt  (N.  P.) 
507,  and  notes  thereto).  Scriveners  do  not  now  exist.  The  business 
formerly  carried  on  by  them  is  divided  between  bankers,  stockbrokers, 
and  other  agents. 


SCEUTINY  181 

Scrope's  Inn.— See  Inns  of  Court. 

Scrutiny. — Parliamentary  Elections. — Nature  of  Scrutiny. — 
A  scrutiny  is  an  inquiry  into  the  validity  of  votes  recorded  for  a  candi- 
date at  an  election,  which  are  objected  to  on  certain  grounds  by  another 
candidate. 

A  scrutiny  may  be  claimed  in  any  election  petition  when  the  seat 
is  claimed  for  an  unsuccessful  candidate  on  the  ground  that  he  had  a 
majority  of  lawful  votes.  But  it  is  to  be  noted  that  in  no  case  can  there 
be  a  scrutiny  unless  a  petition  claiming  the  seat  has  been  presented. 

A  scrutiny  is  frequently  demanded  in  an  election  petition  in  addition 
to  a  recount  (this  was  the  case,  for  example,  in  Finsinn-y,  1892 ;  Stepney^ 
1892;  Lichfield,  1892;  Cirencester,  1893;  Shoreditch,  1895;  St.  George's, 
1896 ;  York,  1898 ;  Pembroke,  1901 ;  Appleby,  1906),  although  a  scrutiny 
may  be  claimed  in  a  petition  without  a  recount  being  asked  for  (as  was 
the  case  in  Manchester,  1892).  It  should,  however,  be  observed  that  a 
scrutiny  is  an  entirely  distinct  proceeding  from  a  recount.  The  recount 
of  votes,  in  modern  practice,  is  usually  taken  before  the  trial  of  the 
election  petition  (see  Eecount)  ;  the  scrutiny  is  held  at  the  trial  of  the 
petition,  and  the  inquiry  into  the  validity  of  each  of  the  votes  objected 
to  is,  in  fact,  in  the  nature  of  a  separate  trial. 

Scrutiny  Lists. — Rule  7  of  the  Parliamentary  Election  Petition  Eules, 
1868  (as  to  these  rules,  see  Election  Petition),  provides  that  when  a 
petitioner  claims  the  seat  for  an  unsuccessful  candidate,  alleging  that  he 
had  a  majority  of  lawful  votes,  the  party  complaining  of,  or  defending, 
the  election  or  return,  must,  six  days  before  the  day  appointed  for  the 
trial,  deliver  to  the  Master,  and  also  at  the  address,  if  any,  given  by  the 
petitioner  and  respondent,  as  the  case  may  be,  a  list  of  the  votes  intended 
to  be  objected  to,  and  of  the  heads  of  objection  to  each  such  vote.  The 
Master  is  to  allow  inspection  and  office  copies  of  such  lists  to  all  parties 
concerned. 

No  evidence  can  be  given  against  the  validity  of  any  vote,  nor  upon 
any  head  of  objection  not  specified  in  the  list,  except  by  leave  of  the 
Court  or  judge,  upon  such  terms  as  to  amendment  of  the  list,  postpone- 
ment of  the  inquiry,  and  payment  of  costs,  as  may  be  ordered  (ibid.). 

This  rule  applies  in  the  case  of  a  claim  for  the  seat  of  an  unsuccessful 
candidate  on  the  ground  that  he  had  a  majority  of  lawful  votes,  and  is 
exclusively  applicable  to  the  delivery  of  particulars  under  that  part  oi 
the  petition  which  claims  the  seat,  and  in  such  case  the  Court  has  nc 
jurisdiction  to  order  particulars  other  than  those  specified  in  the  rule 
or  to  enlarge  the  time  for  their  delivery  (see  Munru  v.  Balfour,  [1893] 
1  Q.  B.  113 ;  which  case  was  followed  and  approved  in  Fumess  v.  Beresford, 
[1898]  1  Q.  B.  495). 

Grounds  for  Scnvtiny. — A  scrutiny  may  be  claimed  if  a  petition 
claiming  the  seat  alleges  that  votes  were  counted  for  the  respondent 
to  which  he  was  not  entitled,  and  that  the  unsuccessful  candidate  has, 
in  fact,  a  majority  of  lawful  votes. 

Upon  a  scrutiny,  votes  may  be  struck  off  on  various  grounds.  Thus 
where  the  person  who  voted  was  under  some  personal  disqualification  at 
common  law  or  by  statute  for  voting  at  the  election  (see  Franchise),  the 
vote  would  be  struck  off  on  a  scrutiny.  This,  however,  applies  only  to  the 
.votes  of  persons  who,  from  some  inherent  or  for  the  time  irremoveable 


182  SCRUTINY 

quality  in  themselves,  have  not,  either  by  prohibition  of  statutes  or  at 
common  law,  the  status  of  parliamentary  electors ;  such  as  peers,  women, 
persons  holding  certain  offices  or  employments  under  the  Crown,  persons 
convicted  of  crimes  which  disqualify,  or  the  like  (see  Stowe  v.  Jolliffe, 
1874,  L.  R.  9  C.  P.  734 ;  Hayward  v.  Scott,  1879,  5  C.  P.  D.  231 ;  see  also 
Femhrokc,  1901,  5  O'M.  &  H.  135).  As  a  general  rule,  the  register  is 
conclusive  as  to  the  right  to  vote ;  so,  for  example,  where  a  person 
becomes  disqualified  by  reason  of  the  receipt  of  parochial  relief  or  other 
alms  since  the  date  of  the  register,  non-residence  within  the  prescribed 
distance  of  the  borough,  non-occupation,  insufficient  qualification,  or  the 
like,  provided  his  name  appears  on  the  register,  his  vote  cannot  be  struck 
off  on  a  scrutiny  (see  ibid. ;  see  also  Ballot  Act,  1872,  35  &  36  Vict.  c.  33, 
8.  7 ;  and  see  Ballot  ;  Franchise  ;  Registration  of  Voters).  The  vote 
of  a  person  whose  name  is  not  on  the  register  will  be  struck  off" (see  Ballot 
Act,  1872,  s.  7;  Finsbury,  1892,  Day's  El.  Cos.,  at  p.  50 ;  see  also  Ballot  ; 
Registration  of  Voters). 

If  the  voter  has  voted  more  than  once  at  the  same  election  (see 
Finshury,  1892,  4  O'M.  &  H.  171),  or  has  been  guilty  of  any  corrupt 
or  illegal  practice,  or  of  illegal  employment,  payment,  or  hiring  at  the 
election  (see  Corrupt  and  Illegal  Practices  Prevention  Act,  1883,  s.  36  ; 
see  also  Corrupt  Practices  ;  Illegal  Practices),  or  has  been  personated 
by  someone  else  (see  ibid.,  at  p.  175 ;  see  also  Corrupt  Practices,  Fer- 
sonation),  or  has  been  subjected  to  undue  influence  (see  Bradford,  1869, 
1  O'M.  &  H.  40),  or  intimidation  (see  Oldham,  1869,  ibid.  161),  the  vote 
will  be  struck  off.  So,  also,  if  the  elector  voted  for  a  candidate  who 
was  disqualified,  after  notice  of  his  disqualification  or  of  the  facts 
creating  the  disqualification  (see  Hawkins  v.  R.,  1813,  2  Dow,  124; 
Galway,  1872,  2  O'M.  &  H.  46 ;  Drinkwater  v.  Deakin,  1874,  L.  R.  9  C.  P. 
626). 

The  votes  of  certain  persons  properly  employed  for  reward  at  elections 
will  be  struck  off  on  a  scrutiny  (see  the  Rep.  of  the  People  Act,  1867, 
s.  11 ;  Corrupt  and  Illegal  Practices  Prevention  Act,  1883,  Sched.  I. 
Pt.  I.  (7);  Redistribution  of  Seats  Act,  1885,  s.  15;  Southaonpton,  1869 
1  O'M.  &  H.  223;  Buckrose,  1886,  4  O'M.  &  H.  116). 

Informalities  with  regard  to  the  ballot  papers  also  constitute  a  ground 
for  removing  votes  on  a  scrutiny ;  where,  for  instance,  a  ballot  paper  is 
without  the  official  mark  on  its  back,  or  if  a  ballot  paper  is  not  marked, 
or  is  so  marked  as  to  be  void  for  uncertainty,  or  if  votes  are  given  on  a 
ballot  paper  to  more  candidates  than  the  voter  is  entitled  to  vote  for,  or 
if  there  is  anything  marked  on  a  ballot  paper  by  which  the  voter  can  be 
identified  (see  Ballot  Act,  1872,  s.  2 ;  ibid.,  Sched.  I.  r.  36 ;  Cirencester, 
1893,  4  O'M.  &  H.  194;  see  also  Ballot). 

Any  votes  which  at  the  scrutiny  are  declared  to  be  void  on  any  of  the 
foregoing  grounds  are  struck  off  from  the  votes  of  the  candidate  in  whose 
favour  they  were  recorded.  But  when  the  candidate  on  the  trial  of  the 
petition  is  proved  to  have  been  guilty,  by  himself  or  by  any  person  on 
his  behalf,  of  bribery,  treating,  or  undue  influence,  in  respect  of  any 
person  who  voted  at  the  election,  or  where  any  person  retained  or 
employed  for  reward  by  or  on  behalf  of  the  candidate  for  any  of  the 
purposes  of  the  election  as  agent,  clerk,  messenger,  or  in  any  other 
employment,  is  proved  to  have  voted  at  the  election,  on  a  scrutiny  one 
vote  for  every  person  who  voted  at  the  election,  and  is  proved  to  have 
been  so  bribed,  treated,  unduly  influenced,  retained,  or  employed,  will 
be  struck  off  from  the  number  of  votes  appearing  to  have  been  given  to 


SCEUTINT  183 

such  candidate  (see  Ballot  Act,  1872,  s.  25 ;  see  also  Malcolm  v.  Parry, 
1874,  L.  E.  9  C.  P.  610 ;  Stepney,  1886,  4  O'M.  &  H.  38 ;  Buckrose,  1886, 
ibid.,  116 ;  Fimhury,  1892,  4  O'M.  &  H.  171). 

Procedure  of  Scrutiny. — The  scrutiny  of  votes,  when  claimed,  takes 
place  at  the  trial  of  the  petition  (see  Election  Petition).  There  appears 
to  be  no  very  definite  rule  as  to  the  precise  stage  of  the  trial  at  which 
the  scrutiny  is  taken.  The  usual  practice  appears  to  have  been  to  take 
the  scrutiny  after  hearing  the  recriminatory  case  (see  Yorkshire,  1869, 
1  O'M.  &  H.  214 ;  Petersfidd,  1874,  2  O'M.  &  H.  95).  In  one  petition 
the  Court  ordered  the  scrutiny  to  be  taken  before  the  recriminatory 
case  (see  Stepney,  1886,  4  O'M.  &  H.  35),  but  in  a  recent  petition  the 
Court  declined  to  deal  with  an  application  to  amend  the  scrutiny 
list  until  the  recriminatory  case  had  been  heard  (^S*^.  Georges,  1896, 
5  O'M.  &  H.  103),  and  the  present  practice  is  to  take  the  scrutiny  after 
the  recriminatory  case  has  been  disposed  of. 

The  procedure  on  the  scrutiny  is  in  the  nature  of  a  separate  inquiry 
into  the  validity  of  each  vote  on  the  list  of  votes  objected  to.  The 
petitioner  first  produces  evidence  to  show  that  the  votes  of  which  he 
has  given  particulars  are  invalid  for  the  reasons  specified  in  the  par- 
ticulars. As  the  inquiry  into  each  vote  is  concluded,  the  vote  is  either 
declared  to  be  valid  for  the  respondent,  or  is  ordered  to  be  struck  ofif 
the  list  of  votes  for  the  respondent.  If  the  vote  is  ordered  to  be  struck 
off,  it  may,  if  it  appears  that  the  petitioner  is  entitled  to  it,  be  added 
to  his  list  of  votes ;  for  votes  may  be  added  as  well  as  struck  oft'  on  a 
scrutiny.  When  the  petitioner  hais  succeeded  in  adding  votes  to  his 
poll  or  striking  off"  votes  from  the  respondent's  poll,  sufficient  in  num- 
ber to  place  himself  in  a  majority,  the  respondent  commences  the  same 
course  of  procedure,  and  if  he  again  succeeds  in  obtaining  a  majority, 
the  petitioner  recommences  attacking  other  votes  of  the  respondent, 
and  in  this  manner  the  scrutiny  proceeds  until  all  the  votes  upon  the 
scrutiny  lists  have  been  inquired  into  and  adjudicated  upon. 

A  voter  may  be  called  as  a  witness  at  a  scrutiny,  and  may  be  asked 
whether  he  voted,  and  his  statement  may  be  sufficient  evidence  to 
invalidate  the  vote  (see  Windsor,  1869,  1  O'M.  &  H.  5 ;  King's  Lynn, 
1869,  ibid.  208 ;  Finsbury,  1892,  Day's  El.  Cas.  48).  But  a  voter  who 
is  called  as  a  witness  may  not  be  asked  for  whom  he  voted,  because  the 
mode  in  which  any  particular  elector  has  voted  may  not  be  discovered 
until  he  has  been  proved  to  have  voted,  and  his  vote  has  been  declared 
to  be  invalid  (see  Ballot  Act,  1872,  Sched.  I.  Pt.  I.  r.  41 ;  see  also 
Ballot). 

If  the  scrutiny  results  in  an  equality  of  votes,  the  election  will  be 
held  to  be  void  (see  Cirencester,  1893,  4  O'M.  &  H.  198) ;  in  such  an 
event  each  party  will  probably  be  ordered  to  pay  his  own  costs  (see 
ibid.  p.  199). 

In  some  recent  petitions  the  scrutiny  has  been  withdrawn  by  leave 
at  the  trial  (see,  for  example,  Haggerston,  1895,  5  O'M.  &  H.  88  ;  St. 
Georges,  1896,  iUd.  116  ;  York,  1898,  ibid.  118 ;  Appleby,  1906,  ibid. 
237),  in  which  case  the  costs  of  the  scrutiny  usually  follow  the  event 
(see  Haggerston,  1895,  cited  supra).  In  St.  George's,  1896,  leave  to 
withdraw  the  scrutiny  was  allowed  at  the  trial  on  the  ground  that 
under  the  circumstances  no  public  interest  would  be  served  by  pro- 
ceeding with  it  (see  5  O'M.  &  H.,  at  p.  117 ;  see  also  Appleby,  1906, 
ibid.  236). 


184  SCULPTUEE 

Municipal  and  other  Elections. — A  scrutiny  of  votes  may  be  had 
at  the  trial  of  municipal  and  local  government  election  petitions,  and 
the  same  procedure  is  available  as  in  the  case  of  a  parliamentary  election 
petition. 

The  principles,  practice,  and  rules  for  the  time  being  observed  in 
the  case  of  parliamentary  election  petitions  with  regard  to  a  scrutiny 
are  to  be  observed  as  far  as  possible  in  the  case  of  a  municipal  election 
petition  (see  Municipal  Corporations  Act,  1882,  45  &  46  Vict.  c.  50, 
s.  100  (3)).  This  applies  also,  with  the  necessary  modifications,  to 
County  Council  elections  under  the  Local  Government  Act,  1888,  51  & 
52  Vict.  c.  41,  and  to  Parish  Council  and  other  elections  under  the  Local 
Government  Act,  1894,  56  &  57  Vict.  c.  73.  See  the  article  Election 
Petition. 

See  also  Ballot;  Corrupt  Practices;  Election  Petition;  Elec- 
tions; Franchise;  Illegal  Practices;  Recount;  Registration  of 
Voters. 

Sculpture— See  Copyright. 

Sea.. — The  law  applicable  to  the  sea  is  treated  in  the  work  under 
such  headings  as  Admiralty  ;  Sea  Fisheries  ;  Marine  Insurance, 
etc.,  etc. 

Sea.  Birds. — Sea  birds  and  their  eggs  come  within  the  scope 
of  the  Wild  Birds  Protection  Acts,  and  many  orders  have  been  made 
under  these  Acts  for  particular  counties,  protecting  such  birds  and  their 
eggs  wholly  or  partially  from  destruction  or  taking.  The  orders  are 
printed  as  Statutory  Rules,  and  those  issued  up  to  1897  are  collected 
in  Marchant  and  Watkins  on  the  Wild  Birds  Protection  Acts.  See  also 
Warry,  Game  Laws,  p.  244. 

Sea.  Fisheries. — The  fisheries  in  certain  seas  outside  the  ter- 
ritorial waters  are  the  subject  of  conventions  between  Great  Britain 
and  other  nations,  e.g.  the  Conventions  made  between  Great  Britain 
and  the  United  States,  in  1818  and  1872,  with  regard  to  sea  fisheries 
on  the  eastern  coasts  of  British  North  America  and  the  United  States 
within  certain  limits;  the  Conventions  between  Great  Britain  and 
France  concerning  the  fisheries  in  the  seas  adjoining  these  countries 
made  in  1839  and  1867  (the  latter  of  which  is  not  yet,  however,  in 
force);  the  Convention  between  Great  Britain,  Germany,  Belgium, 
Denmark,  France,  and  Holland,  made  in  1882,  regarding  the  police  of 
the  fisheries  in  the  North  Sea,  outside  territorial  waters ;  the  Declara- 
tion respecting  the  North  Sea  fisheries  made  between  Great  Britain  and 
Belgium,  with  the  purpose  of  simplifying  the  settlement  of  differences 
between  the  fishermen  of  these  countries  outside  territorial  waters,  in 
1891 ;  the  Convention  made  between  the  nations  which  were  parties  to 
the  Convention  of  1882  respecting  the  liquor  traffic  in  the  North  Sea 
made  in  1887;  the  award  of  the  tribunal  of  arbitration  constituted 
under  the  treaty  made  in  1892  between  Great  Britain  and  the  United 
States  with  respect  to  the  fur  seal  fisheries  in  the  Behring  Sea,  delivered 
in  1894,  and  the  Convention  of  1901  between  Great  Britain  and  Denmark 
as  to  fisheries  outside  territorial  waters  in  the  ocean  surrounding  the  Faroe 
Islands  and  Iceland.     All  the  provisions  of  these  Conventions  are  respec- 


SEA  FISHERIES  185 

tively  confirmed  and  sanctioned  by  statute,  viz.,  1819  (59  Geo.  ill.  c.  38) 
and  1872  (35  &  36  Vict.  c.  45),  the  Sea  Fisheries  Acts  of  1843,  6  &  7  Vict, 
c.  79,  which  is  to  be  repealed  as  soon  as  the  Convention  of  1867  comes 
into  force,  1868  (31  &  32  Vict.  c.  45),  1883  (46  &  47  Vict.  c.  22),  1891 
(54  &  55  Vict.  c.  37),  and  North  Sea  Fisheries  Act  of  1893,  56  Vict.  c.  17, 
and  Behring  Sea  Award  Act  of  1894,  57  &  58  Vict.  c.  2. 

By  the  Act  of  1868,  inter  alia,  power  is  given  to  make  regulations 
by  Order  in  Council  for  the  execution  of  the  Act  and  the  maintenance 
of  good  order  among  fishing-boats  in  the  limits  embraced  by  the  Act 
(s.  7) ;  the  Act  is  enforced  by  officers  known  as  sea  fishery  officers,  who 
include  officers  of  the  Board  of  Trade,  commissioned  officers  in  the  Royal 
Navy  on  full  pay,  consular  officers,  collectors  and  principal  officers  of 
customs  in  the  British  Islands,  inspecting  commanders  of  the  coastguard 
and  principal  officers  of  coastguard  stations,  and  commanders  of  vessels 
belonging  to  the  French  Government  or  appointed  by  that  Govern- 
ment to  superintend  the  fisheries  (s.  8),  who  have  powers  over  any  sea 
fishing-boat  in  the  exclusive  fishery  limits  of  the  British  Islands,  and 
over  British  and  French  fishing-boats  outside  these  limits  in  the  seas 
between  the  two  countries  (s.  9),  and  are  protected  in  respect  of  any  act 
done  in  the  execution  of  their  duty  in  the  same  way  as  customs  officers 
are  (s.  10);  penalties  are  imposed  for  offences  against  the  fishery  regu- 
lations, such  as  obstructing  or  disobeying  such  officers,  for  offences  against 
the  Convention,  for  violation  of  exclusive  fishery  limits  (ss.  11-16),  and 
fishing-boats  of  each  country  are  allowed  to  sell  fish  in  certain  ports  of 
the  other  (s.  17  ff.).  Fishing-boats  in  British  fishing  limits,  and  British 
fishing-boats  outside  them,  must  carry  official  papers  (s.  26).  Offenders 
against  these  fishery  regulations,  outside  the  exclusive  British  fishery 
limits,  who  belong  to  French  fishing-boats,  are  sent  back  to  France  for 
trial  (s.  15).  Foreign  fishing-boats  of  any  country  (which  is  party  to  a 
fishery  convention)  which  are  forced  to  enter  British  ports  by  stress  of 
weather  are  exempt  from  dues  (s.  66). 

The  Act  of  1883  contains  similar  provisions  mutatis  viiUandis. 

The  Act  of  1891  is  merely  supplementary  to  this  Act. 

The  Act  of  1893  imposes  penalties  on  any  person  on  board,  or 
belonging  to  a  British  vessel,  supplying,  exchanging,  or  otherwise  selling 
spirits  to  sea  fishing-boats  outside  territorial  limits  in  the  North  Sea, 
or  any  person  in  a  British  sea  fishing-boat  in  that  sea  buying  spirits, 
by  exchange  or  otherwise,  and  selling  to  such  boats  provisions  or  other 
articles  for  use  other  than  spirits,  except  in  this  last  case  the  seller  have 
a  licence  from  the  Government  according  to  the  regulations  in  that 
respect  made  by  Order  in  Council  (ss.  2-5);  for  enforcing  the  Act, 
British  and  foreign  fishery  officers  have  the  same  powers  and  protections 
as  they  have  under  the  Acts  of  1883  (s.  6).  As  to  requirements  of 
fishing-boats  generally,  see  Fishing-Boats. 

The  regulation  of  sea  fisheries  in  British  waters  is  also  provided  for 
by  statute. 

By  an  Act  of  1888  (51  &  52  Vict.  c.  54),  power  was  given  to  the 
Board  of  Trade,  on  the  application  of  a  county  council  or  borough 
council,  by  order,  to  create  sea  fisheries  districts  comprising  any  part  of 
the  sea  within  which  British  subjects  have  by  international  law  the 
exclusive  right  of  fishing,  either  with  or  without  any  part  of  the  adjoining 
coast  of  England  and  Wales ;  to  define  the  limits  of  the  district  and  area 
chargeable  with  any  expenses  under  the  Act ;  and  to  provide  for  the 
constitution  of  a  local  fisheries  committee  to  regulate  the  sea  fisheries 


186  SEA  FISHEEIES 

in  such  district,  such  committee  to  be  a  committee  of  a  county  or 
borough  council,  or,  if  two  or  more  councils  are  interested,  a  joint-com- 
mittee of  such  councils,  with  the  addition  in  each  case  of  members 
representing  the  fishing  interests  of  the  district  (including  representa- 
tives of  any  board  of  salmon  conservators  having  jurisdiction  in  the 
district),  not  less  in  number  than  the  members  of  the  council  or  councils, 
and  holding  office  for  the  same  time,  and  filling  up  their  own  vacancies. 
Any  such  order  must  be  laid  for  thirty  days  before  both  Houses  of 
Parliament  then  in  session,  and,  subject  to  either  House  resolving  to  a 
contrary  effect,  comes  into  force  at  the  expiration  of  such  time ;  if  a 
county  or  borough  council,  on  being  applied  to  by  twenty  inhabitant 
ratepayers  interested  in  sea  fisheries,  do  not  apply  to  the  Board  to  create 
a  sea  fisheries  district  within  six  months  after  such  application,  such 
applicants  can  apply  to  the  Board  within  twelve  months  for  an  order, 
and  unless  the  council  can  satisfy  the  Board  that  such  order  should  not 
be  made,  the  Board  proceeds  as  if  the  application  had  been  made  by  the 
council ;  before  making  such  order  the  Board  must  publish  locally  the 
draft  of  such  order,  and  cause  an  inquiry  to  be  held  if  any  objection  is 
made  to  it,  after  due  notice,  and  the  report  of  the  inquiry  shall,  if  the 
order  be  made,  be  laid  before  Parliament  (s.  1).  Such  a  committee  may 
make  by-laws  for  the  regulation  of  sea-fisheries  (s.  2),  and  impose  penal- 
ties for  breach  of  them  (s.  3),  but  such  by-laws  must  be  confirmed  by 
the  Board  in  order  to  be  valid  (s.  4),  and  copies  of  them  must  be  pub- 
lished and  sold  (s.  5).  It  may  appoint  fishery  officers  to  enforce  its 
by-laws  (but  this  does  not  exempt  the  coastguard  and  Admiralty  officers 
from  their  statutory  duty  in  enforcing  laws  and  regulations  respecting 
sea  fishing  vessels),  who  have  specified  powers  for  that  purpose  and, 
irder  alia,  may,  by  justices'  warrant,  enter  suspected  places  (ss,  6  and  7). 
Such  committees  must  make  returns  to  the  Board  of  Trade ;  and  the 
Board  must  convene  an  annual  meeting  of  representatives  of  local  com- 
mittees (ss.  8  and  9).  The  expenses  of  such  a  committee  according  to 
the  order  providing  for  the  constitution  of  the  committee  are  general 
or  special  expenses  under  the  Local  Government  Act,  1888  (s.  10). 
Provision  is  made  for  the  relations  of  such  committees  to  conservators 
under  the  Salmon  Acts  and  harbour  authorities  (s.  12);  and  rights  of 
several  fishery,  or  any  right  with  regard  to  the  seashore  under  Act, 
charter,  letters  patent,  prescription,  or  immemorial  usage,  are  untouched 
by  the  Act  (s.  13).  "  Sea  fish  "  does  not  include  salmon  as  defined  in 
the  Salmon  Acts  (see  Salmon  Fisheky),  but  otherwise  means  fish  of  all 
kinds  found  in  the  sea,  and  "  sea  "  includes  the  coast  up  to  high  water- 
mark (s.  14). 

The  functions  of  the  Board  of  Trade  under  the  Sea  Fisheries  Regula- 
tions Acts,  1888,  1891,  1894,  and  Oyster  Fisheries  Acts  (Sea  Fisheries 
Acts,  1875  and  1884;  Oysters,  etc..  Act,  1877,  and  Sea  Fisheries  Act, 
1868,  Part  III.)  have  been  transferred  to  the  Board  of  Agriculture  and 
Fisheries  (3  Edw.  vii.  c.  31). 

The  Act  of  1891  before  mentioned  (54  &  55  Vict.  c.  37)  extends 
the  powers  of  local  fisheries  committees  to  making  by-laws  with  regard 
to  a  close  time  for  sea  fish  (s.  7) ;  it  gives  summary  jurisdiction  over 
offences  committed  on  the  seacoast  or  at  sea  beyond  the  ordinary  juris- 
diction of  a  Court  of  summary  jurisdiction  (s.  8) ;  it  allows  such  a  com- 
mittee to  enforce  the  Sea  Fisheries  Acts  (s.  9),  and  a  county  or  borough 
council  to  pay  or  contribute  to  the  expenses  of  a  board  of  salmon  con- 
servators under  the  1888  Act  (s.  10),  and  the  Act  is  to  be  construed  as 
one  with  that  of  1888  (s.  11). 


SEA  LETTER  OR  SEA  BRIEF  187 

An  Act  of  1894  (57  &  58  Vict.  c.  26)  extends  such  committees' 
powers  to  making  by-laws  for  regulating,  protecting,  and  developing 
fisheries  for  all  or  any  kinds  of  shell  fish  (s.  1). 

Herrings. — In  England  the  chief  statutory  provisions  applicable  to 
the  herring  fishery  relate  to  the  appointment  of  Herring  Fishery  Com- 
missioners, the  establishment  of  fishery  districts,  and  the  rules  to  be 
observed  by  fishermen  and  others.  The  Acts  under  which  the  Commis- 
sioners of  the  Herring  Fishery  enjoy  their  powers  will  be  found  recited 
in  the  preamble  to  14  &  15  Vict.  (1851)  c.  26. 

Mussels. — Under  the  Sea  Fisheries  Act,  1868,  31  &  32  Vict.  c.  45, 
the  Board  of  Trade  can,  on  memorial  to  them,  issue  an  order  to  establish, 
improve,  maintain,  or  regulate  mussel  fisheries  on  the  shore  and  bed  of 
the  sea,  or  of  any  estuary  or  tidal  river  (s.  29).  Such  order  must,  to  be 
effectual,  be  confirmed  by  Act  of  Parliament  (s.  37).  The  effect  of  a 
grant  made  by  such  order  is  that  the  grantees  have,  within  the  pre- 
scribed limits,  the  exclusive  right  of  depositing,  propagating,  dredging, 
and  fishing  for  and  taking  mussels,  etc.  (s.  40).  But  the  order,  instead 
of  making  a  grant,  may  merely  give  the  right  to  regulate  the  fishery 
(s.  41).  The  limits  prescribed  ought  to  be  buoyed  or  marked  off  (s.  42). 
An  annual  report  as  to  any  fisheries  so  established  must  be  made  by  the 
Board  of  Agriculture  and  Fisheries  to  Parliament  (s.  50).  Rights  of 
several  fisheries  and  private  rights,  etc.,  are  not  to  be  afiected  without 
consent  (s.  48). 

Cockles.— The  Sea  Fisheries  Act,  1884, 47  &  48  Vict.  c.  27,  s.  1,  extends 
the  powers  given  by  Part  III.  of  the  Sea  Fisheries  Act,  1868,  31  &  32 
Vict.  c.  45,  to  cockles.  The  Sea  Fisheries  (Shell  Fish)  Regulation  Act, 
1894,  57  &  58  Vict.  c.  26,  also  applies. 

For  the  law  with  regard  to  other  particular  kinds  of  sea  fish,  see 
Crabs  and  Lobsters  ;  Oysters  ;  Seals. 

As  to  sea-going  ships  employed  exclusively  in  fishing  off  the  coasts 
of  the  United  Kingdom,  see  the  M.  S.  A.,  1894,  Part  IV.,  and  the  Sea 
Fisheries  Act,  1883,  46  &  47  Vict.  c.  22,  the  latter  of  which  Acts  con- 
tains provisions  as  to  the  lighting  of  boats,  foreign  boats,  etc.  The  use 
of  dynamite  and  other  explosives  to  catch  or  destroy  fish  in  public 
fisheries  is  prohibited  by  the  Fisheries  (Dynamite)  Act,  1877,  40  &  41 
Vict.  c.  65 ;  and  the  manufacture  or  sale  of  instruments  to  destroy 
fishing  implements  is  prohibited  by  the  Sea  Fisheries  Act,  1883,  siqjra, 
s.  9.  The  restrictions  which  formerly  prevailed  with  regard  to  the  sale 
of  sea  fish  not  diseased  or  unfit  for  food  are  abolished  by  31  &  32  Vict. 
(1868)  c.  45,  s.  19.  As  to  the  time  between  the  salting  and  branding 
of  herrings,  that  may  be  regulated  by  the  Commissioners  of  the  Herring 
Fishery,  but  must  not  be  more  than  fifteen  days  (see  14  &  15  Vict.  (1851) 
c.  26).  The  fraudulent  burning  or  branding  of  barrels  or  casks  of  her- 
rings is  subject  to  penalties  by  48  Geo.  Ill,  (1808)  c.  110,  s.  50;  and 
penalties  are  also  provided  for  the  fraudulent  branding  of  empty  barrels, 
by  14  &  15  Vict.  (1851)  c.  26,  s.  3. 

Sea  Letter  or  Sea  Brief. — One  of  the  documents  which 
a  neutral  vessel  must  carry  so  as  to  protect  her  from  capture  during 
war.  It  is  a  certificate  granted  by  the  neutral  State  giving  permission 
to  the  master  to  sail  under  the  flag  of  the  nation  to  which  he  belongs. 
It  usually  specifies  the  name  of  the  captain,  the  name,  description 
tonnage,  and  destination,  of  the  vessel,  nature  of  the  cargo,  etc. 
(Arnould,  Marine  Insurance,  6th  ed.,  629;  Holland,  Naval  Prize 
Law,  48). 


188  SEALS;  SEALERS;  SEAL  FISHERY 

Seals;  Sealers;  Seal  Fishery  (see  Beuring  Sea 
Fisheries  Case). 

The  Greenland  seal  fisheries  are  now  the  subject  of  special  legisla- 
tion and  regulations. 

In  1874  the  Swedish  Government  called  the  attention  of  that  of 
Great  Britain  to  the  manner  in  which  the  seal  fishing  in  the  seas 
adjacent  to  the  eastern  coasts  of  Greenland  was  carried  on,  with  a  view 
to  putting  a  stop  "  to  the  wanton  and  merciless  destruction  of  the  young 
seals."  It  appeared  that  about  sixty  vessels  were  engaged  in  the  trade, 
sent  from  England,  Norway,  Germany,  Sweden,  and  Holland,  that  the 
practice  had  been  to  commence  the  fishing  about  March,  that  the 
breeding  seals  were  then  killed  in  great  numbers,  that  the  young  seals 
were  left  to  die  of  starvation,  and  that  unless  some  steps  were  taken 
for  adopting  a  close  time,  there  was  reason  to  anticipate  an  ultimate 
extermination  of  the  species,  and  the  consequent  annihilation  of  a 
profitable  branch  of  industry. 

The  Board  of  Trade  communicated  with  the  Dundee  Seal  and  Whale 
Fishing  Company  on  the  suggestion  that  some  international  arrangement 
should  be  made  to  remedy  the  alleged  abuses. 

The  Dundee  Company  replied  that,  so  far  as  they  knew,  none  of 
the  owners  and  masters  of  the  vessels  would  object  to  a  close  season, 
provided  a  satisfactory  international  treaty  on  the  subject  could  be 
arranged. 

Negotiations  resulted  in  the  introduction  into  Parliament  of  a  Bill, 
which  passed  into  legislation  on  the  14th  June  1875,  as  "  An  Act  to 
Provide  for  the  Establishment  of  a  Close  Time  in  the  Seal  Fishery  in 
the  Seas  adjacent  to  the  Eastern  Coasts  of  Greenland  "  (38  Vict.  c.  18). 

It  empowered  the  Crown,  by  Order  in  Council,  to  put  it  in  force 
when  any  foreign  State  whose  ships  or  subjects  were  engaged  in  the 
seal  fishery  in  the  area  mentioned  in  the  schedule  had  made  or  was 
about  to  make  similar  provisions  with  respect  to  its  ships  and  subjects ; 
and  it  provided  that  when  an  Order  in  Council  has  been  made  for 
applying  it,  then  "so  long  as  such  order  remains  in  force,  the  master 
or  person  in  charge  of,  or  any  person  belonging  to  any  British  ship,  or 
any  British  subject,  shall  not  kill  or  capture,  or  attempt  to  kill  or 
capture,  any  seal  within  the  area  mentioned  in  the  schedule  to  this 
Act  (the  schedule  fixes  the  area  as  between  the  parallels  67°  and 
75°  N.  lat.,  and  between  the  meridians  of  5°  E.  long,  and  17°  W.  long. 
(Greenwich)),  or  the  part  of  the  area  specified  in  the  order,  before 
such  day  in  any  year  as  may  be  fixed  by  the  order,  and  the  master 
or  person  in  charge  of  a  British  ship  shall  not  permit  such  ship  to  be 
employed  in  such  killing  or  capturing,  or  permit  any  person  belong- 
ing to  such  ship  to  act  in  breach  of  this  section."  It  further  provides 
that  any  person  who  is  guilty  of  any  breach  (by  any  act  or  default)  of 
this  section,  shall  be  liable  to  a  penalty  not  exceeding  five  hundred 
pounds  for  each  offence. 

An  Order  in  Council  under  the  Act,  applying  the  Act  to  the  area 
described  in  the  schedule  (see  supra),  and  declaring  the  season  to  com- 
mence on  3rd  April  in  each  year,  was  issued  on  February  8,  1876, 
rescinded  February  15,  1876,  and  re-enacted  December  1,  1876. 

Seaman. — The  collective  rights  of  seamen  on  board  a  ship  have 
been  already  dealt  with  under  Crew;  the  present  article  deals  with 
their  individual  rights  and  liabilities,  with  the  exception  of  wages  {q.v.) 
and  salvage  {q.v.). 


SEAMAN  189 

These  are  now  codified  in  the  Merchant  Shipping  Acts  which  regu- 
late the  {a)  engagement  of  seamen ;  (h)  their  rating ;  (c)  their  discharge  ; 
provides  for  the  payment  of  their  wages  by  advance  and  allotment,  money 
orders  and  savings  banks,  their  right  to  wages  and  mode  of  recovering 
them,  and  reimbursement  of  relief  to  their  families  (see  Wages,  Mari- 
time) ;  {d)  the  custody  of  their  property  on  their  decease ;  {e)  guard  against 
seamen  being  left  destitute,  or  abroad,  or  in  distress,  and  provide  for  their 
being  sent  home.  These  Acts  also  provide  for  seamen  (/)  volunteering 
into  the  navy,  their  provisions,  health,  and  accommodation ;  (g)  their 
protection  from  imposition  and  their  discipline,  and  the  registration  of 
and  returns  respecting  seamen  (see  Eegistry  of  Ships);  and  (7t)  for 
establishing  sailors'  homes  in  ports  in  the  United  Kingdom. 

The  term  "  seaman"  in  the  principal  Act  includes  every  person,  except 
masters,  pilots,  and  apprentices,  employed  or  engaged  in  any  capacity  on 
board  any  ship  (s.  742),  e.g.  a  stevedore  {R.  v.  Judge  of  City  of  LoTidon 
Court,  1890,  25  Q.  B.  D.  339),  a  storekeeper  of  a  ship  in  port  {Thovisonv. 
Hart,  1890,  18  Sess,  Ca.  (4th)  Justic.  3),  a  butcher,  baker,  steward,  cook, 
boatswain,  boatswain's  mate,  quartermaster,  and  able  seamen  {The  Great 
Eastern,  1885,  5  Asp.  511),  medical  men,  interpreters,  and  sea-fishing 
boys  (ss.  393  et  seq. ;  Temperley,  Merchant  Shipping  Act  1894,  p.  418), 
but  does  not  include  probably  a  ship's  husband  {Tlie  Ruby,  No.  2,  [1898] 
P.  59 ;  and  see  Wages  (Maritime)). 

(a)  As  regards  the  engagement  of  seamen,  no  person  may  engage  or 
supply  seamen  or  apprentices  for  any  ship,  including  a  foreign  ship  {R.  v. 
Stewart,  [1899]  1  Q.  B.  964;  8  Asp.  534),  in  the  United  Kingdom  unless 
he  holds  a  licence  for  the  purpose  from  the  Board  of  Trade,  or  is  the 
owner,  master,  or  mate  of  the  ship,  or  is  bond  fide  the  servant  and  in  the 
constant  employment  of  the  owner,  or  is  a  superintendent ;  nor  may  any 
person  employ  any  other  person  to  do  so  who  has  not  similar  quali- 
fications to  those  in  the  former  case;  and  no  person  may  receive  on 
board  a  ship  a  seaman  who,  to  his  knowledge,  has  been  engaged  in 
contravention  of  this  provision,  under  a  penalty  (s.  Ill);  such  licences 
may  be  issued  by  the  Board  of  Trade  for  such  time  as  it  thinks  fit,  and 
may  be  granted  and  revoked  on  such  terms  and  conditions  as  the  Board 
thinks  fit  (s.  110),  and  no  person  may  demand  or  receive  remuneration 
from  anyone  who  either  is  or  seeks  to  be  employed  as  a  seaman  or 
apprentice,  except  the  fees  allowed  by  the  Act,  under  penalty  (s.  112). 
For  the  manner  of  engagement  with  the  ship,  see  Crew. 

(&)  A  seaman  is  entitled  to  be  rated  as  an  A.B.,  i.e.  an  able-bodied 
seaman,  when  he  has  served  at  sea  three  years  before  the  mast ;  but 
fishermen  employed  in  registered  decked  fishing  vessels  can  only  count 
as  sea  service  two  years  of  such  employment,  and  must  serve  at  least 
one  year  at  sea  in  a  trading  vessel  in  addition  thereto ;  and  such  service 
may  be  proved  by  certificates  of  discharge  (see  post),  or  certificates  of 
service  granted  by  the  Registrar-General  of  Shipping  (see  Registry  of 
Ships),  or  otherwise  (s.  126),  and  M.  S.  A.,  1906,  s.  58. 

(c)  A  seaman  serving  in  a  British  foreign-going  ship,  whether  regis- 
tered in  or  out  of  the  United  Kingdom,  whose  engagement  ends  in  the 
United  Kingdom,  whether  the  agreement  with  the  crew  {q.v.)  be  a 
voyage  or  running  agreement,  must  be  discharged  before  a  superin- 
tendent, under  penalty  to  the  owner  or  master ;  and  if  the  master  or 
owner  of  a  home-trade  ship  so  desire,  the  seamen  of  that  ship  may 
be  discharged  in  the  same  way  (s.  127).  A  seaman  who  is  discharged 
from  a  ship  must,  on  his  discharge  or  on  payment  of  his  wages,  be  given 


190  SEAMAN 

by  the  master  a  certificate,  in  a  form  approved  by  the  Board  of  Trade, 
specifying  the  period  of  his  service  and  the  time  and  place  of  his  dis- 
charge, under  penalty  (s.  128);  where  a  seaman  is  discharged  before  a 
superintendent,  the  master  must  give,  in  a  prescribed  form,  a  report  of 
the  conduct,  character,  and  qualifications  of  the  seaman  discharged,  or 
state  therein  that  he  declines  to  give  an  opinion  as  to  such  particulars, 
or  any  of  theni,  and  the  superintendent,  if  the  seaman  so  request  him, 
must  give  him,  or  indorse  on  his  certificate  of  discharge,  a  copy  of  such 
report  of  character,  and  must  transmit  such  report  to  the  Eegistrar- 
General  of  Shipping  and  Seamen,  or  as  the  Board  of  Trade  may  direct, 
to  be  recorded  (s.  129);  and  any  person  giving  wilfully  a  false  report  of 
character,  or  forging  or  altering  any  certificate  of  discharge  or  report  of 
character  or  being  privy  to  such  offences,  or  fraudulently  using  such  a 
document,  is  guilty  of  a  misdemeanor  (s.  130). 

(d)  Where  a  seaman  or  apprentice,  belonging  to  a  British  ship  whose 
voyage  is  to  end  in  the  United  Kingdom,  whether  foreign-going  or  a 
home-trade  ship,  dies  on  that  voyage,  the  master  takes  charge  of  any 
money  or  effects  belonging  to  him  in  that  ship,  and  may,  if  he  think 
fit,  have  such  effects  sold  on  board ;  and  he  must  enter  in  the  official 
log-book  the  amount  of  the  money  and  a  description  of  the  effects,  and, 
in  case  of  a  sale,  the  things  sold,  and  the  price  realised,  and  also  a  state- 
ment of  the  sum  due  to  the  deceased  for  wages,  and  the  deductions  to 
be  made  therefrom,  and  this  entry  must  be  signed  by  the  master  and 
attested  by  a  mate  and  some  other  member  of  the  crew  (s.  169).  In 
such  a  case  where  the  ship,  before  coming  to  the  United  Kingdom,  touches 
at  and  remains  for  more  than  forty-eight  hours  at  a  port  elsewhere,  the 
master  must  report  the  case  to  the  British  consul  there,  or  if  it  be  in 
a  British  possession,  to  the  officer  of  customs  there,  and  inform  him,  if 
required,  of  the  ship's  destination  and  voyage ;  the  latter  may  require 
the  property  to  be  delivered  to  him,  and  if  so,  he  gives  a  receipt  for  it, 
and  indorses  the  agreement  with  the  crew  accordingly,  and  the  master 
must  produce  this  receipt  to  a  superintendent  forty-eight  hours  after  he 
arrives  at  his  destination  in  the  United  Kingdom;  if  the  officer  does 
not  so  require,  or  the  ship  proceeds  direct  to  the  United  Kingdom,  the 
master  must,  within  a  similar  time  to  that  last  stated,  deliver  the 
property  to  the  superintendent  at  his  destination  in  the  United  Kingdom ; 
in  all  cases  of  death  of  seamen  in  the  progress  of  a  voyage  the  master 
nmst  give  to  the  Board,  or  the  proper  officer  for  the  purpose,  a  proper 
account  of  the  property  of  the  deceased;  no  deduction  claimed  by  the 
master  in  such  account  is  allowed  unless  verified  by  entry  in  the  official 
log  (if  required  to  be  kept)  or  by  proper  vouchers.  On  due  compliance 
with  these  requirements  the  superintendent  in  the  United  Kingdom 
grants  a  certificate  to  the  master,  and  a  customs  officer  cannot  clear 
inwards  a  foreign-going  ship  without  this  certificate  (s.  170).  Non-com- 
pliance with  these  provisions  as  to  the  property  of  deceased  seamen  and 
apprentices  is  punishable  by  fine,  and  such  property  may  be  recovered 
in  the  same  Court  and  manner  as  wages  are  (s.  171).  Any  property  of 
a  seaman  dying  abroad  belonging  to  a  British  ship  whose  voyage  is  to 
end  in  the  United  Kingdom,  or  having  belonged  to  such  ship  within  six 
months  prior  to  his  death,  which  is  not  left  on  board  the  ship  to  which 
he  belonged  at  the  time  of  his  death,  or  to  which  he  last  belonged  before 
his  death,  is  claimed  and  taken  charge  of  by  the  chief  Customs  officer 
in  the  case  of  a  British  possession,  or  by  the  consul  in  other  cases 
(s.  172);  and  either  of  these  officers  may  sell  any  of  such  property,  and 


SEAMAN  191 

must  quarterly,  or  when  required  by  the  Board,  remit  to  it  the  property, 
and  render  accounts  in  respect  of  it  (s.  173).  Any  property  of  a  sea- 
man who  dies  in  the  United  Kingdom  must  be  delivered  or  accounted 
for  by  the  master  to  the  superintendent  at  the  port  where  the  seaman 
was  or  was  to  have  been  discharged,  or  to  the  Board  (s.  175).  Any  such 
property  in  the  hands  of  the  Board  of  Trade,  after  payment  of  expenses 
incurred  in  connection  with  it  or  its  owner,  if  exceeding  £100  in  value, 
is  paid  or  delivered  over  to  the  legal  personal  representative  of  the 
deceased;  if  not  exceeding  such  value,  it  is  paid  or  delivered  to  the 
widow  or  child  or  person  entitled  to  the  personalty  of  the  deceased 
(s.  176).  As  to  seamen's  wills,  see  Xaval  Testament.  A  creditor 
cannot  claim  from  the  Board  such  property  by  virtue  of  representation 
obtained  as  creditor;  nor  can  he  get  payment  thereout  if  the  debt 
accrued  more  than  three  years  before  the  death,  or  the  demand  is  not 
made  in  two  years  after  it ;  and  any  claim  by  a  creditor  must  be  made 
in  a  particular  form,  verified  by  statutory  declaration,  and  is  investi- 
gated by  the  Board.  Such  investigation  may  be  delayed  for  a  year,  and 
if  the  property  is  claimed  in  that  time  by  a  widow  or  next-of-kin,  etc., 
and  such  claim  is  allowed,  the  property  is  delivered  to  such  person ; 
but  the  creditor  has  the  same  rights  and  remedies  against  such  person 
as  he  would  have  against  the  legal  personal  representative  of  the 
deceased  (s.  178).  Where  no  claim  against  such  property  is  substan- 
tiated in  six  years  after  its  receipt,  the  Board  may  allow  or  refuse  the 
claim  in  its  discretion,  or  apply  the  property  to  the  Exchequer  (s.  179 ; 
M.  S.  A.,  Merc.  Mar.  Fund,  1898,  s.  1).  Forgery  or  use  of  forged  docu- 
ments, or  false  evidence  or  representation  for  the  purpose  of  obtaining 
property  of  deceased  seamen,  is  punishable  by  penal  servitude  or  im- 
prisonment (s.  180).  Property  of  a  seaman  discharged  or  invalided 
from  a  King's  ship  and  dying  on  board  a  merchant  ship  on  his  way 
home,  is  subject  to  the  same  regulations,  except  that  it  is  subject  to  the 
directions  of  the  Accountant-General  of  the  Navy  (s.  181). 

(e)  The  care  of  seamen  destitute  or  left  abroad  is  also  elaborately 
provided  for.  If  a  seaman  who  is  an  Asiatic,  or  African,  or  South  Sea 
or  Pacific  Ocean  Islander,  or  belongs  to  a  country  which  has  not  a 
consul  in  the  United  Kingdom,  is  brought  to  the  United  Kingdom  in  a 
British  or  foreign  ship  and  left  there,  and  in  six  months'  time  becomes 
chargeable  on  the  poor-rate,  or  liable  to  be  convicted  as  an  idle  or  dis- 
orderly person  or  a  vagrant,  the  master  or  owner  of  the  ship,  if  she  is 
British,  or  the  person  who  is  consignee  of  the  ship,  if  she  is  foreign, 
when  the  seaman  is  so  left,  is  liable  to  a  fine,  unless  he  can  show  that 
the  seaman  left  the  ship  without  the  master's  consent,  or  that  the  owner, 
master,  or  consignee  has  afforded  him  due  means  of  returning  to  his 
native  country  or  the  country  where  he  was  shipped ;  and  such  fine 
may  be  ordered  to  be  applied  towards  the  relief  or  sending  home  of  the 
seaman  (s.  184).  Provision  is  also  made  for  the  relief  of  destitute 
Lascars  (s.  185),  and  for  the  relief  and  repatriation  of  distressed  seamen 
and  seamen  left  behind  abroad  (M.  S.  A.,  1906,  ss,  28-49  ;  replacing 
ss.  186-193  of  the  Act  of  1894  and  the  decisions  thereupon  (Purves  v. 
Straits  of  Dover  S.  S.  Co.,  [1899]  1  Q.  B.  38 ;  2  Q.  B.  217 ;  Edwards  v.  Steel 
Young,  [1897]  1  Q.  B.  712;  Board  of  Trade  v.  The  Glenjmrk,  [1904]  1  K.  B. 
682,  and  other  decisions ;  and  see  Ckew)). 

(/)  Seamen  may  leave  their  ships  in  order  to  enter  the  Eoyal  Navy 
without  being  guilty  of  desertion :  a  stipulation  in  an  agreement  by 
a  seaman  to  incur  forfeiture  or  loss  of  wages,  in  case  he  enters  that 


192  SEAMAN 

service,  is  void,  and  causing  such  a  stipulation  to  be  inserted  is  punish- 
able by  fine  (s.  195) ;  and  a  seaman  leaving  his  ship  for  this  purpose  is 
entitled  to  have  all  his  effects  on  board  the  ship  he  leaves  delivered  to 
him  by  the  master,  under  penalty  (s.  196  ;  and  see  Wages  (Maritime)). 
For  their  protection  as  to  provisions,  health,  and  accommodation,  see 
Crew.  They  are  also  given  facilities  for  making  complaints  to  justices, 
consuls,  or  officers  in  command  of  King's  ships,  against  the  master  or 
crew,  and  the  master  must  not  prevent  this  under  penalty  (s.  211). 

{g)  Provision  is  also  made  for  protecting  them  from  imposition.  No 
debt  exceeding  five  shillings,  incurred  by  a  seaman  after  he  has  engaged 
to  serve,  can  be  recovered  till  the  end  of  the  voyage  (s.  213).  Local 
authorities  (namely,  the  County  Council  in  London,  and  elsewhere  the 
local  authority  under  the  Public  Health  Act)  whose  district  includes 
a  seaport,  may,  with  the  approval  of  the  Board  of  Trade,  make  by-laws 
(which  must  be  duly  published  in  the  London  Gazette,  and  come  into 
force  at  a  date  named  therein)  for  seamen's  lodging-houses  in  their 
district,  which  bind  owners,  keepers,  and  employees  of  such  houses,  for 
the  licensing,  inspection,  and  sanitary  conditions  of  such  houses,  exclud- 
ing improper  persons  therefrom,  etc.,  and  the  imposing  of  fines ;  and  if 
the  local  authority  fail  to  make,  revoke,  or  alter  any  such  by-law  within 
a  time  named  by  the  Board  of  Trade,  the  Board  may  do  so  :  an  Order  in 
Council  may  prohibit  any  but  persons  licensed  by  such  by-laws  from 
keeping  seamen's  lodging-houses  under  penalty;  local  authorities  may 
defray  all  expenses  they  are  thus  put  to  out  of  funds  at  their  disposal 
as  sanitary  authority,  and  may  add  to  such  funds  fines  received  under 
this  section  or  any  by-law  thereunder  (s.  214).  Penalties  are  imposed 
on  lodging-house  keepers  who  try  to  overcharge  seamen  (s.  215),  or  who 
detain  seamen's  effects  or  money  of  which  they  have  possession  or  control, 
though  they  may  deduct  therefrom  for  board  and  lodgings,  or  otherwise 
(and  a  Court  of  summary  jurisdiction  may,  besides  inflicting  a  fine,  order 
the  immediate  return  or  payment  thereof  to  the  seaman,  subject  to  such 
just  deduction  (s.  216)),  and  on  persons  who  solicit  seamen  to  lodge  in 
lodging-houses,  or  take  any  seaman's  effects  out  of  the  ship,  except  by 
the  seaman's  direction  and  the  master's  leave  (s.  217),  and  on  persons 
(not  being  in  His  Majesty's  service  or  persons  duly  authorised)  who  go 
on  board  a  ship  without  the  master's  permission  before  the  seamen  leave 
or  are  discharged,  or,  being  on  board,  remain  there  after  being  warned  to 
leave  by  the  master,  police,  or  Board  of  Trade  or  Customs  officers  (s.  218) 
{R.  V.  Goldberg,  [1904]  2  K.  B.  866  ;  B.  v.  Abrahams,  [1904]  2  K.  B.  859), 
and  this  last  provision  may  be  extended  to  foreign  ships  by  Order  in 
Council,  on  its  appearing  that  a  similar  privilege  is  allowed  to  British 
ships  in  the  country  to  which  these  foreign  ships  belong  (s.  219 ;  and 
see  Foreign  Seaman). 

The  following  provisions  are  also  made  as  to  discipline  of  seamen : — 
It  is  a  misdemeanor  for  any  master,  seaman,  or  apprentice  belonging 
to  a  British  ship  to  do  anything  tending  to  the  immediate  loss,  destruc- 
tion, or  serious  damage  of  the  ship,  or  to  endanger  life  or  limb  belonging 
to  or  on  board  the  ship,  or  to  refuse  or  omit  to  do  anything  which  he 
ought  in  order  to  prevent  any  of  the  foregoing  things  taking  place 
(s.  220).  Desertion  from  a  ship  makes  a  seaman  liable  to  forfeit  all  or 
any  effects  he  leaves  on  board,  and  wages  he  has  earned,  and  if  it  is 
abroad,  also  the  wages  he  may  earn  in  any  other  ship  till  he  next  returns 
to  the  United  Kingdom,  and  liable  also  to  satisfy  any  excess  of  wages 
paid  by  the  ship  to  any  substitute  engaged  in  his  place  at  higher  wages. 


i 


SEAMAN  193 

and  also,  except  in  the  United  Kingdom,  to  imprisonment.     Absence 
without  leave  makes  him  liable  to  forfeit  two  days' pay  out  of  his  wages, 
and  for  every  twenty-four  hours  of  absence,  more  pay  and  the  expenses 
of  a  substitute,  and  also,  except  in  the  United  Kingdom,  to  imprisonment 
(8.  221 ;  Keslake  v.  Board  of  Trade,  [1903]  2  K.  B.  453).     A  deserter  or 
absentee  without  leave  from  a  ship  in  the  United  Kingdom  may  be  con- 
veyed on  board  the  ship  by  the  master,  mate,  owner,  ship's  husband,  or 
consignee,  with  or  without  police  or  constables ;  but  if  he  desires  it,  he 
must  first  be  taken  before  a  competent  Court,  and  if  such  conveyance 
is  improper,  it  is  punishable  by  a  fine :  but  the  fine  bars  an  action  for 
false  imprisonment  (s.  222).    A  seaman  who,  out  of  the  United  Kingdom, 
deserts  or  is  absent  without  leave  may,  in  British  dominions  outside  the 
United  Kingdom  and  outside  British  dominions,  if  the  local  law  allows 
it,  be  arrested  without  warrant  by  any  of  the  persons  named  above,  and 
may  be  conveyed  before  a  competent  Court  if  he  so  requires,  but  other- 
wise may  be  conveyed  at  once  on  board  his  ship.     If  such  Court  thinks 
the  arrest  unjustifiable,  the  person  making  it  or  causing  it  to  be  made 
is  liable  to  a  fine ;  but  the  fine  bars  an  action  for  false  imprisonment. 
If  outside  the  United  Kingdom  a  seaman  has  been  imprisoned  for  these 
offences  against  discipline,  and  is  required  to  join  his  ship  before  his 
engagement  ends  and  while  he  is  so  imprisoned,  a  justice  may,  on  the 
application  of  the  owner  or  master,  order  him  to  be  conveyed  on  board 
his  ship  for  the  purpose  of  proceeding  on  the  voyage  (s.  223).     The 
Court  may  order  a  deserter  or  absentee  without  leave,  if  outsitle  the 
United  Kingdom,  in  lieu  of  committing  him  to  prison,  to  be  taken  on 
board  his  ship  in  order  to  proceed  on  the  voyage,  and  the  costs  and 
expenses  incurred  by  the  master  or  owner  on  account  of  the  offence  to 
be  deducted  from  wages  already  earned  or  to  be  earned  by  the  offender. 
In  the  United  Kingdom  a  seaman  or  apprentice  who  means  to  absent 
himself  may  give  notice  to  that  effect  to  the  owner  or  master  not  less 
than  forty-eight  hours  before  he  ought  to  be  on  board  his  ship,  and  in 
such  a  case  the  Court  cannot  exercise  its  powers  under  this  section 
(s.  224).      If  a  seaman  is  charged  with  desertion  or  absence  without 
leave,  and  one-fourth,  or  if  their  number  exceed  twenty,  not  less  than 
five,  of  the  seamen  belonging  to  the  ship  allege  that  the  ship  is  unfit  to 
proceed  to  sea  owing  to  unseaworthiness,  overloading,  improper  loading, 
defective  equipment,  etc.,  the  Court  having  cognisance  of  the  case  may 
receive  the  evidence  of  those  and  also  of  other  persons,  and  if  the  allega- 
tion is  groundless,  may  adjudicate  in  the  case,  but  if  not  so  satisfied  shall 
order   a   survey  to  be  held.     A  seaman  so  charged  cannot  apply  for 
such  a  survey  unless  he  has,  before  leaving  the  ship,  complained  to  the 
master  of  such  circumstances.     The  survey  must  be  held,  and  a  report 
made  to  the  Court,  and  if  the  ship  was  fit  to  go  to  sea,  the  seamen  have 
to  pay  the  costs  of  the  survey  out  of  their  wages ;  if  she  is  not  fit,  the 
master  or  owner  pays  them,  and  is  also  liable  to  pay  the  seaman  com- 
pensation for  his  detention  before  the  Court  (s.  463).     The  following 
offences   by   a  seaman   against   discipline,   namely — leaving   the   ship 
without  leave,  after  her  arrival  at  her  port  of  delivery,  and  before  she 
is  placed  in  security ;  wilfully  disobeying  a  lawful  command ;  continued 
wilful  disobedience  or  neglect  of  duty ;  assaulting  the  master,  mate,  or 
certificated  engineer  of  the  ship ;  combining  with  any  of  the  crew  to 
disobey  lawful  commands,  or  to  neglect  duty,  or  to  impede  the  navigation 
of  the  ship  or  progress  of  the  voyage;  wilfully  damaging  his  ship  or 
embezzling  or  wilfully  damaging  her  stores  and  cargo,  or  being  convicted 
VOL.  XIIL  13 


194  SEAMAN 

of  any  act  of  smuggling  whereby  loss  or  damage  is  caused  to  the  owner 
or  master — subject  him  to  summary  punishment  by  forfeiture  of  wages 
and  imprisonment  with  or  without  hard  labour  (s.  225) ;  and  these 
summary  remedies  are  not  to  affect  other  remedies  of  an  owner  or 
master,  provided  that  they  are  not  compensated  more  than  once  for  the 
same  damage  (s.  226).  A  penalty  is  imposed  on  a  seaman  making 
wilfully  and  fraudulently  a  false  statement  as  to  his  last  ship  or  his 
own  name  (s.  227).  All  offences  must  be  entered  in  the  official  log  (q.v.), 
and  signed  by  the  master  and  mate  or  one  of  the  crew  (s.  228).  In  the 
case  of  desertion  abroad,  the  master  must  show  the  entry  of  it  in  the  log 
to  the  person  authorised  to  give  certificates  for  leaving  seamen  behind 
abroad,  who  takes  a  copy  of  it  and  sends  it  to  the  Registrar-General  of 
Shipping,  and  it  becomes  admissible  in  evidence  (s.  229) ;  and  a  super- 
intendent keeps  at  his  office  a  register  of  deserters,  which  he  must  show 
on  request  to  masters  of  ships  (s.  230).  A  penalty  is  prescribed  for 
enticing  seamen  or  apprentices  to  desert  or  absent  themselves  from 
duty,  and  for  harbouring  deserters  (s.  236).  Stowaways  are  liable  to 
a  fine,  and  all  seamen  carried  under  compulsion  and  stowaways  are,  so 
long  as  they  are  in  the  ship,  deemed  to  belong  to  her,  and  are  subject  to 
the  same  regulations  and  liabilities  of  discipline  as  if  they  were  members 
of  the  crew  (s.  237).  With  regard  to  deserters  from  foreign  ships,  see 
Foreign  Seaman. 

The  Conspiracy  and  Protection  of  Property  Act,  1895,  does  not 
apply  to  "  seamen,"  i.e.  persons  merely  employed  or  engaged  on  board 
ship,  and  the  term  does  not  include  persons  whose  calling  or  occupation 
is  the  sea,  though  they  are  not  actually  so  employed  or  engaged  {R.  v. 
ZyTich  and  Jmies,  [1898]  1  Q.  B.  61). 

For  registration  of,  and  returns  regarding  seamen,  see  Ckew; 
Registry  of  Ships. 

Qi)  A  further  provision  for  the  benefit  of  seamen  is  the  power  given 
to  corporations  of  boroughs — being  ports  in  the  United  Kingdom,  and 
any  corporations,  associations,  or  trustees  in  such  ports  existing  for  public 
purposes  relating  to  the  government  or  benefit  of  persons  engaged  in 
the  British  merchant  service,  or  management  of  docks  and  harbours, 
or  other  public  purposes  connected  with  shipping  and  navigation,  with 
the  consent  of  the  Local  Government  Board — to  grant  sites  for  sailors' 
homes  (s.  259). 

All  these  statutory  provisions  apply  to  sea-going  ships  registered  in 
the  United  Kingdom,  with  certain  exceptions  in  the  case  of  ships  of  a 
general  lighthouse  authority,  pleasure  yachts,  or  fishing-boats  (s.  260) ; 
they  also  apply  to  sea-going  British  ships  registered  out  of  the  United 
Kingdom  as  follows,  namely: — the  provisions  relating  to  the  shipping  and 
discharge  of  seamen  in  the  United  Kingdom  and  volunteering  into  the 
navy  apply  in  every  case ;  those  relating  to  the  property  of  deceased 
seamen  apply  where  the  crew  is  discharged,  or  the  first  destination  of 
the  ship  is  in  the  United  Kingdom :  all  apply  where  the  ships  trade  or 
go  between  any  port  in  the  United  Kingdom  and  any  port  not  situate 
in  the  British  possession  where  the  ship  is  registered ;  those  relating  to 
the  rights  of  seamen  as  regards  wages,  the  shipping  and  discharge  of 
seamen  abroad,  leaving  them  abroad  and  relieving  them  in  distress 
abroad,  their  provisions,  health,  and  accommodation,  their  power  to  make 
complaints,  their  protection  from  imposition,  and  their  discipline  apply 
in  every  case,  except  when  the  ship  is  within  the  jurisdiction  of  the 
British    possession  where  she  is   registered  (s.  261).      The  provisions 


SEARCHES  195 

relating  to  supply  of  seamen  by  unlicensed  persons,  compulsory  dis- 
charge and  payment  of  seamen's  wages  before  a  superintendent,  and 
delivery  of  account  of  wages,  deduction  and  payment  of  fines  imposed 
under  stipulation  in  the  agreements,  do  not  apply  to  seamen  (including 
masters)  in  ships  belonging  to  general  lighthouse  {q.v.)  authorities  or 
pleasure  yachts  (s.  262).  None  of  these  provisions  (except  those  relating 
to  volunteering  into  the  navy  and  property  of  deceased  seamen)  apply  in 
the  case  of  fishing-boats  exclusively  fishing  on  the  coasts  of  the  United 
Kingdom;  those  relating  to  granting  certificates  of  discharge,  or  the 
offences  of  desertion,  absence  without  leave,  and  against  discipline,  do 
not  apply  to  any  fishing-boats,  whether  exclusively  so  fishing  or  not 
(s.  263).  Colonial  legislatures  may  apply  any  of  these  provisions  which 
would  not  otherwise  so  apply  to  ships  registered  in  their  Colonies ;  and 
if  so,  they  take  effect  as  if  enacted  in  this  Act  (s.  264).  An  unregistered 
ship  is  deemed  to  be  a  registered  one  for  the  purposes  of  these  pro- 
visions (s.  266). 

The  provisions  in  the  Act  with  regard  to  limitation  of  liability  in 
cases  of  collision  of  ships  do  not  take  away  any  liability  to  which  any 
master  or  seaman,  being  also  owner  or  part-owner  of  the  ship  to  which 
he  belongs,  is  subject  in  his  capacity  of  master  or  seaman  (s.  508). 

The  Workmen's  Compensation  Act,  1906,  6  Edw.  vii.  c.  58,  applies 
to  seamen  if  workmen  within  the  meaning  of  the  Act  (see  Employers' 
Liability),  and  members  of  the  crew  of  a  ship  registered  in  the  United 
Kingdom,  or  of  any  other  British  ship  of  which  the  owner  or  managing 
owner  or  manager  resides  or  has  his  principal  place  of  business  in  the 
United  Kingdom,  subject  to  provisions  as  to  notice,  time  of  claim,  and  in 
particular  that  if  the  injured  seaman  leaves  no  dependants,  no  compensa- 
tion is  payable  if  the  shipowner  is  under  the  Merchant  Shipping  Act, 
1894,  liable  to  pay  the  expenses  of  burial;  that  the  weekly  payment 
is  not  payable  during  the  period  that  the  shipowner  is  under  the  Act 
liable  to  pay  the  costs  of  his  maintenance ;  and  that  any  compensation 
is  paid  in  full  in  spite  of  the  shipowner's  limitation  of  liability  (s.  503), 
but  such  limitation  applies  to  the  amount  recoverable  as  indemnity 
under  this  Act  as  if  it  were  damages  for  loss  of  life  or  personal  injury, 
and  dependants  of  seamen  lost  with  their  ship  can  claim  compensation 
in  the  same  way  as  seamen  and  apprentices  can  recover  their  wages 
<s.  7). 

{^Authorities. — Temperley,  Merchant  Shipping  Acts,  2nd  ed.,  1907; 
Abbott,  Merchant  Shipping,  4th  ed.,  1901 ;  Maude  and  Pollock,  Merchant 
Shipping,  4th  ed.,  1881.] 

Sea.rcher. — An  officer  of  the  customs,  whose  duty  is  to  search 
vessels  and  goods  for  prohibited  or  dutiable  goods.     See  Customs. 

Searches. — Searches  to  be  made  by  purchasers  or  others  pre- 
liminary to  dealings  with  landed  or  other  property,  may  be  divided  into 
two  classes,  according  as  they  concern  title  or  otherwise.  The  former 
are  matter  of  necessity  in  order  to  perfect  title.  The  latter  are  rather 
matter  of  precaution  in  order  to  avoid  trouble  in  the  future.  The 
search  for  lis  pendens  affords  an  illustration  of  both  classes.  It  has  been 
■established  that  the  "  doctrine "  of  lis  pendens,  whereby  registration 
affects  purchasers,  mortgagees,  etc.,  with  notice,  applies  only  to  land  and 
chattel  interests  in  land,  and  not  to  personal  estate  (  Wigram  v.  Buckley, 
[1894]  3  Ch.  (C.  A)  483) ;  nevertheless,  as  was  pointed  out  by  Lindley, 


196  SEAECHES 

L.J.,  in  that  case,  it  is  a  common  practice  for  conveyancers  to  advise 
purchasers  and  mortgagees  of  personal  estate  to  search  the  lis  pendens 
registry,  so  as  "  to  keep  their  clients  out  of  difficulties  and  possible 
litigation."  The  question  what  searches  ought  to  be  made,  must  neces- 
sarily depend  on  the  nature  of  the  particular  transaction,  and  is  often 
one  of  considerable  difficulty  (see  Dart,  V.  &P.,  1905  ed.,  pp.  881, 1220). 

A  material  improvement  in  the  law  affecting  searches  as  to  "  land  " 
(which  expression  includes  lands,  messuages,  tenements,  and  heredita- 
ments corporeal  or  incorporeal  of  any  tenure)  has  been  effected  by  the 
Land  Charges  Registration  and  Searches  Act,  1888,  51  &  52  Vict.  c.  51. 
A  register  of  writs  and  orders  affecting  land  has  been  established  by  that 
Act  (s.  5)  at  the  Land  Registry  Office,  and  therein  may  be  registered 
"  any  writ  or  order  affecting  land  issued  or  made  by  any  Court  for  the 
purpose  of  enforcing  a  judgment,  statute,  or  recognisance,  and  any  order 
appointing  a  receiver  or  sequestrator  of  land"  (s.  5,  subs.  1);  and  every 
such  writ  and  order,  and  every  delivery  in  execution  or  other  proceeding 
taken  in  pursuance  of  any  such  writ  or  order,  or  in  obedience  thereto, 
is  void  as  against  a  "  purchaser  for  value  "  (including  a  mortgagee,  or 
lessee,  or  other  person  who  for  valuable  consideration  takes  any  interest 
in  land  or  in  a  charge  on  land),  unless  the  writ  or  order  is  for  the  time 
being  registered  in  pursuance  of  the  Act.  For  observations  as  to  the 
practical  effect  of  the  Act,  see  Elphinstone  and  Clark  on  the  Act,  pp.  2, 3. 
The  register  contains — (a)  The  name,  address,  and  description  of  the 
person  whose  land  is  affected ;  (b)  the  date  and  nature  of  the  writ  or 
order,  and  the  Court,  and  the  action  or  matter  by  and  in  which  the  writ 
or  order  was  issued  or  made ;  (c)  the  date  of  registration,  and  of  any 
renewal  of  registration ;  (d)  the  name  and  address  of  the  applicant  or  of 
the  solicitor,  if  any,  making  the  application  (Rules  under  the  Act,  r.  1). 
Registration  of  a  writ  or  order  under  the  Act  has  the  same  effect  as,  and 
makes  unnecessary,  registration  in  the  Central  Office  in  pursuance  of 
any  other  Act.  The  expression  "judgment "  includes  any  order  or  decree 
having  the  effect  of  a  judgment  other  than  an  order  made  by  a  Court  in 
bankruptcy  (s.  4).  By  the  same  Act,  similar  registries  with  similar  pro- 
visions for  protection  of  purchasers  for  value  are  established  for  deeds  of 
arrangement  affecting  land,  and  for  land  charges. 

Usual  Searches. — In  the  case  of  freehold  lands,  the  usual  searches  at 
the  Land  Registry  are  for  executions,  etc.,  under  Part  II.  of  the  Act  of 
1888,  for  deeds  of  arrangement  under  Part  III.,  and  for  land  charges  under 
Part  IV.  By  the  Land  Charges  Act,  1900,  63  &  64  Vict.  c.  26,  all  judg- 
ments and  recognisances,  whether  obtained  or  entered  into  on  behalf  of 
the  Crown  or  otherwise,  before  or  after  the  passing  of  the  Act,  will  not 
operate  as  a  charge  on  land  unless  registered  under  the  Act  of  1888 
(supra).  By  an  order  under  the  Act  there  are  transferred  to  the  office 
of  Land  Registry  all  registers  and  applications  for  registration  relating 
to  English  judgments,  lis  pendens,  Crown  debts,  executions,  and  annuities 
(see  Chitty's  Statutes,  1900,  p.  1147i.).  Registrations  of  writs  or  orders 
in  pursuance  of  the  Act  cease  to  have  effect  after  five  years,  but  may 
be  renewed  from  time  to  time,  and  if  renewed  remain  in  force  for  five 
years  from  renewal. 

Searches  for  enrolled  deeds  should,  if  necessary,  be  made  in  the 
enrolment  department  of  the  Central  Office.  Deeds  of  arrangement  da 
not  require  re-registration.  In  the  case  of  copyholds,  the  Court  rolls  of 
the  manor  should  be  searched  back  to  the  surrender  on  which  the  last 
purchaser  for  value  was  admitted  tenant.     In  the  case  of  leaseholds,  the- 


SEARCHES  197 

searches  are  the  same  as  for  freeholds  (see  Elphinstone  and  Clark,  pp.  83; 
162).  Where  the  vendors  are  trustees  or  mortgagees,  it  is  usual  to 
search  for  lis  pendens  only,  but  searches  in  the  local  registries,  and,  as 
regards  copyholds,  on  the  Court  rolls,  may  be  usefully  made  (see  Elphin- 
stone and  Clark,  155,  158,  159). 

Bankruptcy. — Searches  in  bankruptcy  are  necessarily  imperfect,  as 
the  register  at  the  Court  of  bankruptcy  is  not,  as  to  country  bank- 
ruptcies, kept  up  to  date.  The  search  is  usually  made  for  five  years, 
but  in  special  circumstances  it  should  be  extended  to  twelve  years.  The 
matter  is  one  for  the  discretion  of  the  solicitor  employed. 

Land  Charges.— By  the  Act  of  1888  (51  &  52  Vict.  c.  51),  "land 
charge  "  is  defined  as  meaning  a  rent,  or  annuity,  or  principal  moneys 
payable  by  instalments,  or  otherwise,  with  or  without  interest  charged, 
otherwise  than  by  deed,  upon  land,  under  the  provisions  of  any  Act  of 
Parliament,  for  securing  to  any  person  either  the  moneys  spent  by  him 
or  the  costs,  charges,  and  expenses  incurred  by  him  under  such  Act,  or 
the  moneys  advanced  by  him  for  repaying  the  moneys  spent,  or  the 
costs,  charges,  and  expenses  incurred  by  another  person  under  the 
authority  of  an  Act  of  Parliament,  and  a  charge  under  the  35th  section 
of  the  Land  Drainage  Act,  1861,  or  under  the  29th  section  of  the 
Agricultural  Holdings  (England)  Act,  1883,  but  does  not  include  a 
rate  or  scot. 

Charges  on  land  in  favour  of  local  authorities  for  street  expenses 
under  sec.  257  of  the  Public  Health  Act,  1875,  38  &  39  Vict.  c.  55, 
have  been  held  not  to  require  registration  under  the  Land  Charges,  etc., 
Act  of  1888  (see  R.  v.  Vice- Registrar  of  Land  Registry,  1889,  24  Q.  B.  D. 
178).  The  case  was  not  argued  on  behalf  of  any  purchaser  for  value, 
and  therefore  can  hardly  be  regarded  as  an  authority ;  but  it  cannot 
safely  be  disregarded,  and  inquiry  at  the  offices  of  the  local  authorities 
as  to  the  existence  of  such  charges,  where  the  nature  of  the  property 
renders  it  desirable,  should  therefore  not  be  neglected.  See  In  re  Allen 
&  Driscoll,  [1904]  1  Ch.  493,  where  it  was  decided  that  the  expenses 
under  the  section  first  become  "  a  charge  on  the  premises  in  respect  of 
which  they  were  incurred"  from  the  date  of  the  completion  of  the 
works.  See  as  to  other  Acts  containing  similar  provisions  to  those  of 
sec.  257,  supra.  Dart's  V.  &  P.,  1905  ed.,  p.  1198n.  In  London,  searches 
used  to  be  made  at  the  County  Hall  for  orders  in  respect  of  dangerous 
structures  under  the  London  Building  Acts,  but  a  search  for  land 
charges  under  the  Act  of  1888  is  now  considered  sufficient.  For  an 
enumeration  of  registered  charges  under  various  Acts  of  Parliament, 
public,  local,  and  personal,  see  Elphinstone  and  Clark,  pp.  109  et  seq. 

Powers  of  Attorney. — An  alphabetical  index  of  the  names  of  the 
grantors  of  all  powers  of  attorney  filed  under  sec.  48  of  the  Con- 
veyancing Act,  1881,  44  &  45  Vict.  c.  41,  is  kept  at  the  Central  Office, 
and  may  be  searched  by  any  person ;  but  no  copies  or  extracts  may  be 
taken  other  than  those  made  by  the  office. 

Local  Searches. — In  the  case  of  land  (other  than  copyhold)  in 
Middlesex  or  Yorkshire,  it  is  usual  to  search  the  local  registries.  The 
Middlesex  Registry  has  now,  under  the  Land  Registry  (Middlesex  Deeds) 
Act,  1891,  54  &  55  Vict.  c.  64,  been  transferred  to  the  Land  Registry. 
The  search  should  in  all  cases  be  carried  back  to  the  last  purchase  or 
mortgage,  but  a  longer  search  is  sometimes  required. 

Order  61,  r.  22,  provides  that  the  registrar  of  judgments  (whose 
business  is  now  conducted  in  the  Land  Registry)  shall  not  receive  any 


198  SEARCHES 

memorandum  of  a  judgment,  lis  pendens,  annuity,  Crown  debt,  or  other 
incumbrance  after  2  p.m.  A  search,  therefore,  up  to  that  hour  on  the 
day  of  completion,  will  disclose  all  incumbrances  registered  so  as  to 
afiect  a  purchaser. 

Official  Searches. — These  formerly  took  place  in  the  Central  Office 
under  sec.  2  of  the  Conveyancing  Act,  1882,  45  &  46  Yict.  c.  39,  and  in 
the  Land  Eegistry  under  the  Land  Charges,  etc..  Act,  1888,  s.  17,  and 
the  Land  Charges  Eules,  1889,  and  now  all  searches  take  place  in  the 
Land  Registry. 

When  the  search  is  to  be  made  under  sec.  2  of  the  Conveyancing 
Act,  1882,  the  person  requiring  the  search  to  be  made  is  to  deliver 
a  requisition  in  that  behalf  referring  to  the  section.  The  requisition 
must  be  in  writing,  signed  by  the  person  making  it,  and  specifying  the 
name  against  which  he  desires  the  search  to  be  made,  or  in  relation  to 
which  he  requires  an  office  copy  certificate  of  result  of  search,  and  he 
must  satisfy  the  proper  officer  that  the  search  is  required  for  the 
purposes  of  the  section  (see  sec.  2  of  the  Act,  sub-sees.  2  and  4).  By  the 
rules  under  the  Act  it  is  required  that  the  requisition  should  state  the 
name  and  address  of  the  person  making  it,  and  should  be  filed  in  the 
office  where  the  search  has  been  made.  Upon  delivery  of  the  requisition, 
the  proper  officer  is  diligently  to  make  the  search  required,  and  to 
make  and  file  in  the  office  a  certificate  setting  forth  the  result  thereof ; 
office  copies  of  the  certificate  are  to  be  issued  on  requisition,  and  an 
office  copy  is  to  be  evidence  of  the  certificate  (subs.  2).  In  favour  of  a 
purchaser,  as  against  persons  interested  under  or  in  respect  of  judgments, 
deeds,  or  other  matters  or  documents,  the  certificate,  according  to  the 
tenor  thereof,  is  to  be  conclusive,  affirmatively  or  negatively,  as  the  case 
may  be  (subs.  3).  It  must,  however,  be  remembered  that  the  certifi- 
cate can  only  be  conclusive  of  the  fact  that  no  entry  exists  against  the 
person  described  in  the  requisition  (See  Elphinstone  and  Clark,  166). 
Forms  of  requisition  and  certificate  are  given  by  the  rules,  adapted 
respectively  to  searches  (1)  in  the  Enrolment  Office  for  deeds  or  other 
documents  enrolled  (Forms  III.,  VII.) ;  (2)  in  the  Bills  of  Sale  Depart- 
ment, for  bills  of  sale  (Forms  IV.,  VIII.) ;  (3)  in  the  registry  of  certifi- 
cates of  acknowledgments  of  deeds  by  married  women  (Forms  V.,  IX.) ; 
and  (4)  in  the  registry  of  judgments,  for  judgments,  revivals,  decrees, 
orders,  rules,  and  lis  pendens,  and  for  judgments  at  the  suit  of  the 
Crown,  statutes,  recognisances,  Crown  bonds,  inquisitions,  and  accept- 
ances of  office  (Forms  VI.,  X.).  The  declaration  as  to  the  purposes  for 
which  the  search  is  required  (ex  gr.  sale,  mortage,  or  lease  by  A.  to  B.) 
may  either  be  contained  in  the  requisition  or  in  a  separate  instrument 
(see  Forms  I.,  II.).  A  solicitor  who  obtains  an  office  copy  certificate  of 
result  of  search  is  not  to  be  answerable  in  respect  of  any  loss  that  may 
arise  from  error  in  the  certificate  (subs.  8) ;  and  the  same  protection  is 
extended  to  trustees,  executors,  agents,  or  other  persons  in  a  fiduciary 
position,  whether  acting  by  a  solicitor  or  obtaining  the  certificate 
personally.  Where  a  certificate  has  been  issued,  and  it  is  desired  that 
the  search  be  continued  in  the  same  name  to  a  date  not  more  than  one 
calendar  month  subsequent  to  the  date  of  the  certificate,  the  search 
may  be  continued  on  requisition,  and  the  result  of  the  continued  search 
may  be  indorsed  on  the  original  certificate.  Forms  of  requisition  and 
indorsement  are  given  (see  Forms  XL,  XII.).  By  sec.  17  of  the  Land 
Charges,  etc..  Act,  1888,  the  provision  as  to  searches,  and  the  protective 
provisions  contained  in  sec.  2  of  the  Conveyancing  Act,  1882,  are  made 


SEARCH  WAEEANT 


19d 


applicable  to  searches  in  any  register  or  index  kept  in  pursuance  of  that 
Act ;  and  forms  corresponding  with  those  prescribed  under  the  Act  of 
1882  are  given  in  the  schedule  to  the  Land  Charges  Rules,  1889. 

See  for  Rules  and  Forms  under  the  Conveyancing  Act,  1882,  St. 
R.  &  0.,  Rev.  1904,  tit.  "  Supreme  Court,"  p.  553. 

Search  Warrant  is  an  order  of  a  justice  of  the  peace 
authorising  one  or  more  persons  named  or  described  therein  to  enter  a 
building,  named  or  described,  to  search  for  goods  named  or  described, 
and  to  seize  them  if  found.  Search  without  a  warrant  is  illegal,  except 
in  cases  within  sec.  16  of  the  Prevention  of  Crimes  Act,  1871,  34  &  35 
Vict.  c.  112. 

The  only  common-law  search  warrant  is  for  stolen  goods,  which  is 
granted  only  on  a  sworn  information  that  the  applicant  for  the  warrant 
suspected  the  commission  of  a  felony  (larceny)  in  respect  of  property 
of  his,  and  that  it  is  in  the  place  which  he  wishes  to  have  searched 
{JoTus  V.  German,  [1896]  2  Q.  B.  418 ;  [1897]  1  Q.  B.  375).  Such  a 
warrant  may  be  issued  and  executed  on  a  Sunday  (11  &  12  Vict.  c.  42, 
8.  4).  The  common-law  warrant  is  supplemented  by  sec.  103  of  the 
Larceny  Act,  1861,  authorising  the  issue  of  search  warrants  in  respect 
of  property  obtained  by  offences  against  that  Act,  and  is  extended  to 
fugitive  offenders  from  the  colonies  by  44  &  45  Vict.  c.  69,  s.  24.  See 
Stolen  Goods. 

The  officer  must  take  the  warrant  with  him  {Godd  v.  Cahe,  1876, 
1  Ex.  D.  352) ;  and  should  demand  admission  before  exercising  his  right 
to  enter  by  force  {Launock  v.  Brown,  1818,  2  Barn.  &  Aid.  592),  and 
should  take  with  him  a  person  able  to  identify  the  property  to  be 
searched  for.    See  Stolen  Goods. 

General  warrants  for  the  search  for  documents,  etc.,  are  illegal 
{Entick  V.  Carrington,  1765,  19  St.  Trl  1030). 

The  warrant  cannot  be  backed,  but  if  issued  by  a  borough  justice  it 
may  be  executed  in  the  adjoining  county  within  seven  miles  of  the 
borough  (45  &  46  Vict.  c.  50,  s.  223). 

Particular  provisions  for  the  grant  and  execution  of  search  warrants 
are  made  by  many  statutes.  Most  of  these  are  enumerated  in  TJie 
Metropolitan  Police  Guide,  4th  ed.,  1906,  p.  556.  The  principal  Acts 
are  given  in  the  annexed  table: — 


Search  for  Property. 


Purpose. 

Military  property  reason- 
ably suspected  to  be 
unlawfully  possessed 

Property  stolen  or  un- 
lawfully obtained  and 
possessed  by  a  dealer 
in  old  metals 

Stolen  manufactured 
articles  or  materials 


Obscene       publications 

kept  for  sale 
Adulterated  bread 


Issaed  by. 

Court  of  sum- 
mary juris- 
diction 

A  justice 


A  justice 


Execution. 

As  in  case  of 

stolen  goods 


A  justice 
A  jvistice 


Instruments  of  forgery  .        A  justice 


Act 
44  &  46  Vict.  c.  58,  s. 
16C  (5). 

24  &  25  Vict.  c.  110, 
s.  4 ;  and  see  2  & 
3  Vict.  c.  71,  s.  25 
(Metrop.). 

22  Geo.  II.  c.  27,  s.  4  ; 
17  Geo.  III.  c.  56,  8. 
10 ;  6  &  7  Vict.  c.  40, 
ss.  8,  14. 

20  &  21  Vict.  c.  83. 

3  Geo.nr.c.6,  s.  13  (Lon- 
don) ;  6  &  7  Will.  IV. 
c.37,8.11(elsewhere). 

24&25Vict.c.98,s.46. 


200 

Purpose. 
Coining  tools,  etc.  . 
Property        unlawfully 

pawned 
Concealed  property  of  a 

bankrupt 

Explosives  made  or  pos- 
sessed to  commit 
felonies 

Explosives  kept  in  breach 

of  Act  or  for  criminal 

purposes 
Petroleum  kept  in  breach 

of  Act 
Intoxicants  illegally  sold 

or  kept 

Merchandise  Marks  Acts, 

goods  contravening 
Unsound  food 


Forei^  Enlistment  Act 

(ships) 
Pirated  Music 

And  see  Customs  ;  Excise  ;  Inland  Revenue. 


SEASHOEE 

Issued  by.               Execution. 

Act. 

A  justice 

24  &  25  Vict.  c.  99,8. 27. 

A  justice 

35  &  36  Vict.  c.  93, 8. 36. 

Court  in  which 

45  &  46  Vict.  c.  52,  S8. 

bankruptcy 

57,119;  Bankruptcy 

is  pending 

Rules,  1886,  r.  84. 

A  justice 

24  &  25  Vict.  c.  97,  s. 

55  ;  24  &  25  Vict.  c. 

100,  s.  65  ;  46  &  47 

Vict.  c.  3,  s.  8. 

A  justice 

38  &  39  Vict.  c.  17,  s. 
73. 

A  justice 

34  &  35  Vict.  c.  105,  s. 

13. 

A  justice 

37  &  38  Vict.  c.  49,  s. 

17  ;    4  Edw.  vil.  c. 

28,  s.  29  (clubs). 

A  justice 

50  &  51  Vict.  c.  28,  s. 

12. 

A  justice 

38  &  39  Vict.  c.  55,  s. 

119 ;  53  &  54  Vict. 

c.  59,  s.  28  ;  54  &  55 

Vict.   c.   76,   ss.   97, 

115  (London);  5  Edw. 

VII.  c.  32,  s.  1  (b). 

Secretary     of 

33  &  34  Vict.  c.  90,  s. 

State,  etc. 

25. 

A  justice 

6  Edw.  VII.  c.  36,  s.  2. 

Search  for  Persons. 


Vagrants    concealed    in 

lodging  houses 
In  disorderly  houses 

111  disorderly  clubs 
In  betting  houses  . 
In  gaming  houses  . 

In  the  Metropolitan 
justices  may,  instead  of 
intendent  oi  police  (8  &  9 

Women  or  girls  abducted 

or  detained 
Children 
Infants  (nurse  children) 


A  justice 
A  justice 


5  Geo.  IV.  c.  83,  s.  13. 


25  Geo.  II.  c.  36,  s.  2  ;  48  &  49 
Vict.  c.  69,  s.  13. 
A  justice  4  Edw,  vii.  c.  28,  s.  29. 

A  justice  16  &  17  Vict.  c.  119,  s.  11. 

A  justice  8  &  9  Vict.  c.  109,  s.  3. 

Police  District,  the  Commissioners  of  Police  who  are 
a  search  warrant,  give  a  written  authority  to  a  super- 
Vict.  c.  109,  s.  6 ;  16  &  17  Vict.  c.  119,  s.  12). 

A  justice  48  &  49  Vict.  c.  69,  s.  10. 


A  justice 
Two  justices 


4  Edw.  vii.  c.  15,  s.  10. 
60  &  61  Vict.  c.  57,  s.  3. 


Seashore. — See  Foreshore. 

SeaAVOrthineSS. — There  is  an  implied  warranty  that  at  the 
commencement  of  a  voyage  the  ship  is  seaworthy  for  the  adventure 
insured.  See  Crew,  Vol.  IV.  225 ;  Marine  Insurance,  Vol.  VIIL,  at 
p.  616. 


Secondary. — See  London  City. 
Secondary   Conveyances. 

ANCES. 


See  Derivative   Convey- 


Secondary  Evidence.— See  Evidence. 


SECKETAEY  (OF  A  JOINT-STOCK  COMPANY)         201 
Secretary  (of  a  Joint-Stock  Company).— Every 

company  formed  under  the  Companies  Act,  1862-1907,  has  its  secretary, 
that  is,  an  officer  to  do  the  clerical  and  ministerial  work  of  the  company. 
The  articles  of  a  company  often  contain  a  clause  naming  a  certain  person 
as  secretary,  and  fixing  his  remuneration.  But  such  a  nomination  in 
the  articles,  though  it  constitutes  an  authority  by  the  shareholders  to 
the  directors  to  appoint  the  person  in  question  secretary,  does  not  create 
a  contract  between  the  person  named  as  secretary  and  the  company  on 
which  he  can  compel  the  company  to  employ  him  {Eley  v.  The  Positive 
Government  Company,  1876,  1  Ex.  D.  88).  The  articles  may,  however,  if 
his  appointment  as  secretary  is  established  aliunde,  be  evidence  of  the 
terms  on  which  he  is  serving  the  company.  Under  the  Companies  Act, 
1900,  8.  1  (2),  the  person  named  as  secretary  in  the  company's  articles 
is  one  of  the  persons  who  may  make  the  statutory  declaration,  required 
on  incorporation,  of  the  company  having  complied  with  the  requisitions 
of  the  Acts.  Also  under  the  Companies  Act,  1900,  s.  12,  subs.  2,  clause 
D,  the  name  and  address  of  the  company's  secretary  must  now  be 
mentioned  in  the  notice  of  the  statutory  meeting. 

The  duties  of  a  company  secretary  are  multifarious.  He  is  present 
at  all  Board  meetings  and  at  all  general  meetings  of  the  company,  and 
takes  minutes  of  the  proceedings.  He  conducts  the  correspondence 
of  the  company,  gives  notices  of  meetings,  keeps  the  books  of  the 
company,  the  register  of  members,  the  share  ledger,  the  transfer  books, 
and  the  register  of  mortgages  and  charges;  he  prepares  the  Annual 
Return  to  the  Registrar  of  Joint-Stock  Companies  under  sec.  26  of 
the  Companies  Act,  1862,  and  this  summary  must  be  signed  by  him 
or  by  the  manager  of  the  company  (Companies  Act,  1900,  s.  19 
(2)).  But  all  this  he  does  ministerially,  that  is  to  say,  acting 
under  the  instructions  of  the  directors  and  by  their  authority.  He 
cannot,  for  instance,  summon  a  meeting  of  the  company  on  his  own 
initiative  {Re  Wyoming  State  Syndicate,  [1901]  2  Ch.  431).  He  has  no 
authority  to  make  representations  as  to  the  state  of  the  company's 
affairs,  so  as  to  induce  persons  to  take  shares  in  the  company  {Newland 
V.  National  Employers  Accident  Association,  1885,  54  L.  J.  Q.  B.  851 ; 
and  Partridge  v.  Albert  Life  Association,  1872,  16  S.  J.  199).  He  has 
no  authority  to  strike  a  name  off  the  register  of  shareholders  (  Wheat- 
croft's  Case,  1872,  29  L.  T.  326),  nor  to  warrant  the  genuineness  of 
share  certificates  {Ruben  v.  The  Great  Fingall  Consolidated,  lb  L.  J.  K.  B. 
843),  or  to  "certify"  transfers  {Re  George  Whitechurch  &  Co.,  [1901] 
A.  C.  167).  Hence,  if  he  does  so  fraudulently  for  his  own  ends,  the  com- 
pany will  not  be  answerable.  As  a  corollary  of  the  same  principle,  a 
secretary  is  not  liable  for  the  misapplication  of  the  company's  funds  by 
the  directors,  though  in  fact  he  may  have  been  aware  of  such  misappli- 
cation {Joint-Stock  Discount  Company  v.  Brown,  L.  R.  8  Eq.  396),  but 
he  may  be  liable  for  misfeasance  if  he  receives  an  improper  commission 
{Barroids  Case,  28  W.  R.  341 ;  M'Kay's  Case,  2  Ch.  D.  1).  A  secretary 
may  be  sued  for  negligence,  but  in  such  a  case  he  may  set  up  the 
Statute  of  Limitations  {Municipal  Freehold  Land  Co.  v.  Pollin^ton,  1890, 
63  L.  T.  243).  He  may  be  summoned  for  public  examination  under  the 
Companies  Winding-up  Act,  1890,  s.  8,  if  the  Official  Receiver  finds  a 
prima  facie  case  of  fraud  against  him.  When  a  man  is  secretary  of  two 
companies  his  knowledge  as  secretary  of  one  company  is  not,  by  the 
mere  fact  of  his  double  capacity,  notice  to  him  as  secretary  of  the  other 
company  {Fenvrick,  Stobart  &  Co.,  In  re  Deep  Sea  Fisheries  Claim,  [1902] 


202  SECKETAEY  OF  EMBASSY 

1  Ch.  507).  There  are  a  number  of  statutory  offences  for  which  a 
secretary  may  incur  penalties.  He  is  liable,  for  example,  to  a  penalty 
of  £50  under  the  Companies  Act,  1862,  s.  42,  if  he  uses  or  authorises 
the  use  of  a  seal,  purporting  to  be  the  seal  of  the  company,  without  its 
having  the  company's  name  engraven  on  it.  He  is  also  liable  to  a  penalty 
if  he  issues  or  authorises  the  issue  of  any  notice,  advertisement,  or 
other  official  publication  of  the  company,  or  signs  or  authorises  the 
signature  on  behalf  of  the  company  of  any  bill  of  exchange,  cheque,  order 
for  money  or  goods,  invoice  or  receipt  wherein  the  name  of  the  company  is 
not  mentioned.  And  he  is  further  liable  to  the  holder  for  the  amount 
of  any  such  bill  of  exchange,  promissory  note,  cheque,  or  order  for 
money  or  goods.  He  is  also  subject  to  penalties  if  he  knowingly  and 
wilfully  permits  the  omission  of  any  charge  from  the  company's  register 
of  mortgages,  or  refuses  to  allow  any  creditor  or  member  of  the  com- 
pany to  inspect  such  register  at  reasonable  time  (Companies  Act,  1862, 
s.  43).  He  may  be  criminally  liable  if  he  falsifies  any  books  or  documents 
of  the  company  (Companies  Act,  1862,  s.  166). 

A  secretary  is  entitled — in  the  absence  of  an  express  agreement 
to  the  contrary — to  reasonable  notice  of  dismissal  {Green  v.  Wright, 
1  C.  P.  D.  592).  Misconduct  is  another  matter,  and  will  justify 
immediate  dismissal  {Re  Boston  Deep  Sea,  33  Ch.  D.  339 ;  Pearce 
V.  Foster,  17  Q.  B.  D.  536).  An  order  for  winding-up  operates  as 
a  notice  of  discharge  to  a  secretary  {Chapman's  Case,  1  Eq.  346),  but 
his  services  may  of  course  be  retained  by  the  liquidator  {McDowell's 
Case,  1886,  32  Ch.  D.  366).  The  appointment  of  a  receiver  and 
manager  in  a  debenture  holder's  action — being  a  mode  of  liquida- 
tion— operates  also  as  notice  of  dismissal  {Beid  v.  Uocplosives  Co., 
19  Q.  B.  D.  264).  As  to  the  effect  of  a  resolution  to  wind-up  volun- 
tarily, see  Shirreffs  Claim,  14  Eq.  417;  and  Midland  Counties  District 
Bank,  [1905]  1  Ch.  357.  A  secretary  may  be  a  very  proper  person  to 
act  as  voluntary  liquidator  {Be  LoTulon  and  Australian  Agency  Corp., 
1873,  29  L.  T.  R  417). 

Secretary  of  Embassy. — See  Diplomatic  Agents. 

Secretary  of  State. — The  history  of  this  office  goes  back 
to  the  thirteenth  century,  when  the  secretarial  duties  previously  per- 
formed by  the  Chancellor  passed  into  the  hands  of  an  officer  of  the 
household  known  as  the  King's  Secretary.  For  a  long  time  the  King's 
Secretaries — it  became  customary  to  appoint  two  secretaries — were  mere 
clerks  charged  with  the  execution  of  the  royal  orders.  In  the  fifteenth 
century  one  of  them  had  the  custody  of  the  Signet,  and  became  respon- 
sible for  Crown  grants,  which  could  not  pass  the  Privy  and  Great  Seals 
without  an  authority  under  the  Signet.  In  the  reign  of  Henry  viii., 
the  King's  Secretary,  if  a  bishop  or  a  baron,  was  given  precedence  over 
other  bishops  and  barons,  and  one  was  to  sit  in  each  House  of  Parlia- 
ment. The  King  still  governed  with  the  advice  of  the  Privy  Council 
and  its  Committees,  the  Secretaries  acting  as  channels  of  communica- 
tion between  the  Crown  and  the  Council  and  its  Committees,  a  duty 
which  they  also  discharged  as  regards  the  representatives  of  foreign 
Powers  and  the  subjects  at  large.  "  They  were  employed  to  make  up 
despatches  at  the  conclusion  of  councils,  and  not  to  govern  or  preside  in 
these  councils."  In  the  reign  of  Elizabeth,  Sir  Eobert  Cecil  bore  the 
title  of  Principal  Secretary  of  Estate,  the  same  term  already  having 


SECRETAEY  OF  STATE  203 

been  employed  in  1476  where  it  denoted  not  a  difference  in  rank  between 
the  two  Secretaries  but  the  importance  of  the  office  (Anson's  Law  of  the 
Constitution,  vol.  ii.  p.  159). 

After  the  Restoration,  when  Committees  of  the  Privy  Council  were 
appointed  for  different  departments  of  business,  the  Secretaries  of  State 
were  to  be  of  all  the  Committees.  They  also  belonged  to  the  informal 
body  of  trusted  counsellors  who  developed  into  the  Cabinet  {q.v.).  Their 
position  in  the  Cabinet  gave  them  a  preponderating  influence  on  the 
Committees,  which  they  gradually  superseded,  becoming  themselves  the 
sole  advisers  of  the  Crown  in  the  business  of  their  departments,  subject 
to  the  growing  control  of  the  Cabinet  and  their  responsibility  to  the 
House  of  Commons.  Until  1783  there  were  two  Secretaries  of  State,  the 
Secretary  of  State  for  the  Northern  Department  advising  the  Crown  as 
to  foreign  relations  with  the  Northern  Powers  of  Europe,  and  the  Secre- 
tary of  State  for  the  Southern  Department,  as  to  foreign  relations  with 
the  Southern  Powers,  domestic  affairs,  Ireland,  and  the  colonies.  From 
1707  to  1746  there  was  a  third  Secretary  of  State  for  Scotland,  and 
from  1768  to  1782,  a  Secretary  of  State  for  the  Colonies.  In  1782  the 
Northern  Department  became  the  Foreign  Office,  and  the  Southern 
Department  the  Home  Office,  with  Irish  and  Colonial  business  attached, 
the  office  of  Secretary  of  State  for  the  Colonies  being  for  the  time 
abolished.  A  Secretary  of  State  for  War  was  appointed  in  1794,  and 
the  colonies  were  transferred  to  him  from  the  Home  Office  in  1801. 
In  1854  separate  Secretaries  of  State  were  appointed  for  War  and  for 
the  Colonies,  and  in  1858  a  fifth  Secretary  of  State  was  appointed  for 
India.  The  five  Secretaries  of  State  advise  the  Crown  in  the  exercise 
of  its  prerogative  {q.v.)  and  statutory  powers  relating  to  their  respec- 
tive departments;  and  have  also  powers  conferred  upon  them  indi- 
vidually by  statute.  (See  Colonial  Office;  Foreign  Office;  Home 
Office;  India  Office;  War  Office.)  Unless  where  otherwise  pro- 
vided by  statute,  each  Secretary  of  State  may  discharge  the  duties  of 
the  other  Secretaries.  The  manner  of  appointment  is  by  the  delivery 
of  three  seals — the  Signet,  a  lesser  seal,  and  a  small  seal  called  the  cachet 
— and  upon  receiving  them  the  holder  becomes  "  one  of  His  Majesty's 
Principal  Secretaries  of  State  "  (see  Pitt's  Speech,  reported  33  Pari.  Hist. 
976).  Not  more  than  four  Secretaries  of  State  may  sit  in  the  House 
of  Commons  at  the  same  time.  Each  Secretary  of  State  has  a  Parlia- 
mentary Under-Secretary,  like  his  chief  changing  with  the  Ministry, 
sitting  in  one  House  of  Parliament  or  the  other.  The  Under-Secretary 
appointed  by  the  Secretary  of  State  does  not  receive  his  office  from  the 
Crown.  Each  Department  is  also  controlled  by  a  Permanent  Under- 
Secretary  of  State,  who  is  a  member  of  the  permanent  civil  service. 

The  offices  of  Secretary  of  State  for  Scotland  and  for  Ireland  are 
not  upon  the  same  footing  as  the  other  Secretaryships  of  State.  The 
Scottish  Secretary's  office  was  created  in  1885  (48  &  49  Vict.  c.  61),  and 
there  were  transferred  to  it  all  matters  relating  to  Scotland.  The 
Secretary  is  not  a  Secretary  of  State  strictly  speaking  but  a  representa- 
tive for  local  purposes  of  various  Government  departments  (Anson,  ibid. 
p.  170).  The  Irish  Secretary  is  known  as  the  "Chief  Secretary  to 
the  Lord  Lieutenant  of  Ireland,"  and  carries  on  all  the  work  of  the  office 
without  interference  from  any  English  office,  though  even  as  late  as 
1881  the  Home  Office  was  somehow  supposed  to  possess  control  over 
the  Irish  Secretary  (see  Sir  William  Harcourt's  views  in  Hansard's  Pari. 
Debs.,  cclxii.  22). 


204  SECRET  DISPOSITION 

For  a  further  history  of  the  office,  see  the  great  case  of  general 
warrants  {Entick  v.  Carrington,  1765,  19  St.  Tri.  1030),  which  decided 
that  a  Secretary  of  State  had  no  right  to  issue  general  warrants  or  search 
warrants  to  seize  the  papers  of  the  alleged  author  of  a  seditious  libel. 
He  may,  however,  issue  a  warrant  of  arrest  for  treason  or  treasonable 
practices  {R  v.  Despard,  1798,  7  T.  E.  736 ;  4  R.  R.  563 ;  B.  v.  Oxford, 
1840,  4  St.  Tri.  K  S.  497). 

Secret  Disposition. — See  Birth,  Coxcealment  of. 

Secret  Preparation. — See  Trade  Secret. 

Secret  Profits. — See  Principal  and  Agent. 

Secret  Trust.— See  Trusts. 

Security  for  Costs. — l.  In  the  High  Cmrt. — In  certain 
cases  the  defendant  may  require  the  plaintiff,  before  proceeding  with 
the  action,  to  give  security  for  costs — the  object,  of  course,  being  to 
prevent  a  defendant  being  harassed  with  litigation  unless  there  is 
some  responsible  person  who  can  be  made  liable  for  the  costs  if  the 
action  fails.  The  cases  in  which  such  security  can  be  required  are 
as  follows : — 

(1)  Where  the  sole  plaintiff  is,  or  all  the  plaintiffs  are,  resident 
out  of  the  jurisdiction  {Crozat  v.  Brogden,  [1894]  2  Q.  B.  30 ;  Republic 
of  Costa  Rica  v.  Erlanger,  1876,  3  Ch.  D.  62 ;  UHormusgee  v.  Grey, 
1883,  10  Q.  B.  D,  13;  Archibald,  Practice,  p.  310).  A  plaintiff 
ordinarily  resident  out  of  the  jurisdiction  may  be  required  to  give 
security  though  temporarily  resident  within  the  jurisdiction  (Order 
65,  r.  6a;  Michiels  v.  The  Empire  Palace  Co.,  1892,  66  L.  T.  132). 
Security  will  not,  however,  be  required  from  a  plaintiff  who  is  abroad 
in  an  official  capacity  on  the  public  service  {Colebrook  v.  Jones,  1751, 
1  Dick.  154;  Evelyn  v.  Chippendale,  1839,  9  Sim.  497),  or  is  resident 
in  Scotland  or  Ireland  (Judgments  Extension  Act,  1868,  31  &  32  Vict, 
c.  54,  s.  5  ;  /w  re  Howe  Machine  Co.,  1889,  41  Ch.  D.  118),  or  though 
permanently  residing  out  of  the  jurisdiction,  has  substantial  property 
within  it  {Redondo  v.  Chaytor,  1879,  4  Q.  B.  D.  p.  457 ;  Hamburgher  v. 
Poetting,  1882,  30  W.  R.  769 ;  Redfern  v.  Redfern,  1891,  63  L.  T.  780 ; 
In  re  Apollinaris  Co.'s  Trade  Marks,  [1891]  1  Ch.  1). 

A  defendant  resident  out  of  the  jurisdiction,  who  has  set  up  a 
counterclaim,  will  not  be  required  to  give  security  for  costs  {JSfeck  v. 
Taylor,  [1893]  1  Q.  B.  560),  unless  his  counterclaim  is  really  a  cross- 
action,  so  that  he  is  virtually  plaintiff  (Sykes  v.  Sacerdoti,  1888, 
15  Q.  B.  D.  422).  Where,  on  an  application  to  rectify  the  register  of 
trade  marks,  both  parties  were  resident  out  of  the  jurisdiction,  both 
were  ordered  to  give  security  (La  Compagnie  G^nSrale  d'Eaux  MinSrales 
et  de  Bains  de  Mer,  [1891]  3  Ch.  451).  As  to  security  for  costs  in  an 
interpleader  issue,  see  Tomlinson  v.  The  Land  and  Finance  Corporation, 
Ltd.,  1884,  14  Q.  B.  D.  539  ;  Rhodes  v.  Dawson,  1886,  16  Q.  B.  D.  548 ; 
the  general  rule  is  that  whoever  is  in  substance,  though  not  in  form, 
the  plaintiff  may  be  ordered  to  give  security  if  resident  out  of  the 
jurisdiction.  But  security  will  not  as  a  rule  be  required  from  a  claimant 
under  an  ordinary  inquiry  {Re  Milward  &  Co.,  [1900]  1  Ch.  405) ;  secios, 
as  to  a  claimant  in  a  winding-up  {Re  Pretoria  Pietersburg  Rly.  Co., 
[1904]  2  Ch.  359). 


SECUEITY  FOE  COSTS  205 

(2)  Where  the  plaintiff  misdescribes  his  residence  in  the  writ,  or 
is  fraudulently  keeping  out  of  the  way  {Bedondo  v.  CJiaytor,  1879, 
4  Q.  B.  D.  p.  458 ;  In  re  Sturgis  British  Motive  Poiver  Syndicate,  1885, 
34  W.  K.  163  ;  Morgan  and  Wurtzburg  on  Costs,  p.  10,  and  cases  there 
cited). 

(3)  Where  the  plaintiff  is  a  person  privileged  from  arrest,  e.g.  an 
ambassador's  servant  {Goodwin  v.  Archer,  1727,  2  P.  Wms.  452  ;  24  E.  R. 
809 ;  Lord  Aldbormigh  v.  Barton,  1834,  2  Myl.  &  K.  401 ;  39  E.  R.  997). 

(4)  Where  the  plaintiff  is  a  limited  company,  and  there  is  reason 
to  believe  that  the  assets  of  the  company  will  be  insufficient  to  pay  the 
costs  (Companies  Act,  1862,  25  &  26  Vict.  c.  89,  s.  69 ;  Moscow  Gas  Co. 
V.  InterTiational  Financial  Soc,  1872,  L.  R.  7  Ch.  225 ;  Northampton 
Coal  Co.  V.  Midland  Waggon  Co.,  1878,  7  Ch.  D.  500  ;  Pure  Spirit  Co. 
v.  Fowler,  1890,  25  Q.  B.  D.  235 ;  Buckley,  8th  ed.,  p.  232) ;  as  to  the 
amount  of  the  security  to  be  given,  see  Dominion  Brewery  v.  Foster, 
1898,  77  L.  T.  507. 

The  mere  fact  that  a  plaintiff  is  very  poor,  or  even  insolvent,  is  no 
ground  for  ordering  him  to  give  security  for  costs  (Coivell  v.  Taylor,  1886, 
31  Ch.  D.  34 ;  Cook  v.  Whellock,  1890, 24  Q.  B.  D.  658 ;  Bhodes  v.  Dawson, 
1886,  16  Q,  B.  D.  548),  unless  he  is  suing  as  a  nominal  plaintiff  for  the 
benefit  of  somebody  else  (Covjell  v.  Taylor,  p.  38);  nor  will  security  be 
required  from  a  person  who,  though  nominally  a  plaintiff,  is  really 
compelled  to  litigate  {Watteau  v.  Billam,  1849,  14  Jur.  165);  nor  from 
a  married  woman  suing  without  a  next  friend  {In  re  Isauc,  Jacob  v. 
Isaac,  1885,  30  Ch.  D.  418 ;  In  re  Thompson,  Stevens  v.  Thompson,  1888, 
38  Ch.  D.  317);  nor  from  an  unlimited  company  {United  Ports  and 
General  Insurance  Co.  v.  Hill,  1870,  L.  R.  5  Q.  B.  395),  and  the  Court 
will  not  require  a  liquidator,  on  the  ground  of  poverty,  to  give  security 
for  the  costs  of  a  misfeasance  summons  {Be  Strand  Wood  Co.,  [1904] 
2  Ch.  1).  A  trustee  in  bankruptcy  may  sue  without  giving  security, 
but  not  the  trustee  of  a  deed  of  assignment,  if  shown  to  be  insolvent 
{Greener  v.  E.  Kahn  &  Co.,  [1906]  2  K.  B.  374). 

Security  may  be  ordered  from  a  petitioner  {In  re  Sturgis  British 
Motive  Poiver  Syndicate,  1885,  34  W.  R.  163;  Morg.  and  Wurtzburg, 
p.  17),  or  from  a  person  who  moves  in  an  action  to  which  he  is  not 
a  party  {Apollinaris  Co.  v.  Wilson,  1886,  31  Ch.  D.  632),  in  cases  in 
which  it  would  be  ordered  from  a  plaintiff. 

An  application  for  security  for  costs  is  made  by  summons  at  chambers 
(Seton,  6th  ed.,  p.  28  ;  Chitty's  Archbold,  p.  395  et  seq. ;  Berdzen  v.  Taylor, 
[1893]  2  Q.  B.  193).  In  any  cause  or  matter  in  which  security  for  costs 
is  required,  the  Master  may  direct  such  amount  to  be  given,  and  at  such 
times  and  in  such  manner,  as  he  may  in  his  discretion  think  fit  (Order  65, 
r.  6  ;  BepuUic  of  Costa  Pica  v.  Erlanger,  1876,  3  Ch.  D.  62),  and  the  order 
usually  directs  a  stay  of  proceedings  until  the  security  is  given  (Seton, 
p.  26 ;  Whiteley  Exerciser,  Ltd.  v.  Gamage,  [1898]  2  Ch.  405).  He  may 
either  order  money  to  be  paid  into  Court,  or  a  bond  to  be  given  as 
security.  In  the  latter  case,  unless  the  Master  otherwise  directs,  the 
bond  will  be  given  to  the  party  or  person  requiring  the  security,  and 
not  to  an  officer  of  the  Court  (Order  65,  r.  7).  The  sureties  proposed 
must,  of  course,  be  solvent  persons,  and  the  plaintiffs  solicitor  cannot  be 
surety  {Panton  v.  Labertouche,  1843, 1  Ph.  265 ;  41  E.  R.  633);  but  there 
is  no  general  rule  that  the  bond  of  a  foreign  company  will  never  be 
regarded  as  sufficient  security  {Aldnch  v.  British  Grijfin  Co.,  [1904] 
2  K.  B.  850).     Security  may  be  ordered  for  past  as  well  as  future  costs 


206  SECURITY  FOR  COSTS 

(Massey  v.  Allen,  1879,  12  Ch.  D.  807 ;  Brocklebank  &  Co.  v.  Kirig's  Lynn 
Steamship  Co.,  1878,  3  C.  P.  D.  365).  In  the  Chancery  Division  the 
usual  course  is  to  order  security  for  £100,  but  a  much  larger  amount 
will  be  ordered  if  necessary  (Stiirla  v.  Freccia,  1877,  W.  N.  166,  188 ; 
1878,  W.  N.  161 ;  Republic  of  Costa  Rica  v.  Erlaiiger,  1876,  3  Ch.  D.  62); 
as  to  the  practice  in  the  King's  Bench  Division,  see  Annual  Practice, 
1908,  p.  943.  If  the  plaintiff  makes  default  in  giving  security,  he  may 
be  ordered  to  give  it  within  a  limited  time,  and  in  default  the  action 
may  be  dismissed  (In  re  Sturyis  British  Motive  Power  Syndicate,  1885, 

34  W.  R.  163). 

By  sec.  66  of  the  County  Courts  Act,  1888,  51  &  52  Vict.  c.  43, 
security  for  costs  may  be  ordered  to  be  given  by  a  plaintiff  in  tort, 
on  evidence  that  he  has  no  visible  means,  and  in  default  the  action  may 
be  remitted  to  the  County  Court.  A  counterclaim  is  not  an  "  action  " 
within  this  section  {Delobbel-Flipo  v.  Varty,  [1893]  1  Q.  B.  663).  See 
County  Courts,  Vol.  IV.  p.  120 ;  and  Stay  of  Proceedings. 

As  to  the  Admiralty  practice,  consult  R  S.  C,  Order  65,  rr.  6  and  6a, 
and  the  following  cases : — 

The  Johann  Friedrich,  1839,  1  Rob.  W.  39 ;  The  Lord  Cochrane,  1842,  ibid. 
312;  The  Sophie,  ibid.  326;  The  Jxdia  Fisher,  1877,  2  P.  D.  115;  The 
Seringapatam,  1848,  3  Rob.  W.  41n. ;  The  Beatrice,  1866,  36  L.  J.  Ad.  10 
(security  required  from  the  U.  S.  Government) ;  The  Newbattle,  1885, 10  P.  D. 
33  (the  same  from  the  Belgian  Government) — all  these  are  cases  of  residence 
md  of  the  jurisdiction ;  The  Lake  Meganiic,  1877,  3  Asp.  82  (insolvency  of 
plaintiff).  As  to  procedure,  see  The  Volant,  1842,  1  Rob.  VV.  384  ;  The  Batata, 
[1897]  P.  118;  Franz  v.  Elise,  1861,  Lush.  377;  The  Zufall,  1875,  2  Asp. 
587  (masters  suing) ;  The  Don  Bicardo,  1880,  5  P.  D.  122  (mate  suing). 

As  to  Probate  practice,  see 

Bohon  V.  Bobson,  1864,  3  Sw.  &  Tr.  368  (security  not  required  from  defendant); 
Crispin  v.  Doglioni,  1860,  1  Sw.  &  Tr.  522  (or  foreigner  resident  in  England) ; 
Threlfall  v.  IFilson,  1883,  8  P.  D.  18  (or  married  woman  suing  alone,  even  if 
no  separate  estate) ;  Ann.  Prac. 

2.  In  the  Court  of  Appeal. — On  an  appeal,  the  Court  of  Appeal  may, 
under  special  circumstances,  direct  a  deposit  or  other  security  to  be  made 
or  given  for  the  costs  to  be  occasioned  by  the  appeal  (Order  58,  r.  15), 
and  the  rule  applies  to  appeals  under  the  Workmen's  Compensation 
Act,  1897  (Hall  v.  Snowdon,  [1899]  1  Q.  B.  593).  Under  the  present 
practice  an  order  may  also  be  made  for  security  for  the  costs  of  an 
application  for  a  new  trial  ( Wightwick  v.  Pope,  [1902]  2  K.  B.  99). 

An  application  for  security  is  made  by  motion  to  the  Court  of  Appeal 
on  notice  (ibid.,  r.  18 ;  Grills  v.  Dillon,  1876,  2  Ch.  D.  325).  It  must  be 
made  promptly,  unless  some  good  reason  can  be  given  for  the  delay 
(Mayor  of  Saltash  v.  Goodman,  1880,  43  L.  T.  464;  Mlis  v.  Stewart,  1887, 

35  Ch.  D.  459 ;  In  re  Indian,  Kingston,  and  Sandhurst  Mining  Co.,  1882, 
22  Ch.  D.  83). 

The  fact  that  the  appellants  are  foreigners  domiciled  abroad  is  a 
"  special  circumstance "  entitling  the  respondents  to  security  (Grant 
V.  Banque  Franco- Egyptienne,  1877,  2  C.  P.  D.  430 ;  In  re  Kathleen 
Mavourneen,  1878,  W.  N.  215 ;  but  see  contra,  In  re  Apollinaris  Co.'s 
Trade  Mctrks,  [1891]  1  Ch.  1).  Security  has  also  been  ordered  on  the 
ground  of  the  appellant's  poverty  (Harlock  v.  Ashberry,  1882,  19  Ch.  D. 
84 ;  Gathercole  v.  Smith,  1880,  W.  K  102 ;  Morecroft  v.  Evans,  1882, 


SECUEITY  FOR  COSTS  207 

W.  N.  189),  where  he  was  insolvent,  and  the  appeal  was  vexatious  and 
unreasonable  ( Usil  v.  BrearUy,  1878,  3  C.  P.  D.  206),  where  the  appellant 
had  not  complied  with  a  bankruptcy  summons  {Nixon  v.  Sheldon,  1884, 
W.  N.  81),  or  had  become  bankrupt  {United  Telephone  Co.  v.  Bassano, 
1886,  31  Ch.  D.  630),  where  the  appeal  was  speculative  {In  re  Ivory, 
1879,  10  Ch.  D.  372),  where  there  had  been  great  delay  in  prosecuting 
the  action  {Smith  v.  White,  1879,  W.  K  203),  where  the  appellant  had 
failed  to  pay  the  costs  below  {In  re  Tees  Bottle  Co.,  1876,  20  Sol.  J.  584; 
Clarke  v.  Roche,  1877,  46  L.  J.  Ch.  372),  and  where  a  primd  fade  case  of 
an  abuse  of  the  process  of  the  Court  was  shown  {Wddon  v.  Maples, 
Teesdale  &  Co.,  1887,  20  Q.  B.  D.  331).  A  limited  company  appealing 
alone  from  a  winding-up  order  will  generally  be  required  to  give 
security  {In  re  Photographic  Artists  Co-operative  Supply  Association, 
1883,  23  Ch.  D.  370).  The  fact  that  both  parties  appeal  makes  no 
difference  as  to  requiring  security  {Dence  v.  Wason,  1879,  W.  N.  31). 
Security  will  not  generally  be  required  where  the  liberty  of  the  subject 
is  involved  {Hood  Barrs  v.  fferiot,  [1896]  2  Q.  B.  375 ;  In  re  Strong,  1886, 
31  Ch.  D.  273). 

The  amount  of  security  ordered  to  be  given  does  not  depend  on  the 
value  of  the  property  in  dispute,  but  on  the  probable  costs  of  the  appeal 
{Morecroft  v.  Evans,  1882,  W.  N.  189,  where  £150  was  ordered;  and  see 
Wilson  v.  Church,  1879,  11  Ch.  D.  576,  where  the  amount  was  fixed  at 
£300;  Polini  v.  Gray,  Sturla  v.  Frecda,  ibid.  741,  where  it  was  £1500). 
Security  may  be  ordered  either  by  payment  into  Court,  which  is  the 
practice  when  the  amount  does  not  exceed  £20  {In  re  Knight,  Knight 
V.  Gardner,  1888,  32  Sol.  J.  305),  or  by  bond  with  sureties  {Phos- 
2)hate  Sewage  Co.  v.  Hartmont,  1876,  2  Ch.  D.  811).  The  form  of  order 
should  provide  for  the  bond  to  be  given  to  the  satisfaction  of  the 
judge  at  chambers  in  case  the  parties  dififer  {Hope  v.  Hope,  86  L.  T. 
363). 

The  present  form  of  order  limits  the  time  for  giving  security  to 
fourteen  days,  unless  otherwise  ordered,  and  directs  that  in  default  of 
the  appellant  giving  such  security  within  the  time  limited  the  appeal 
should  stand  dismissed  without  further  order,  and  that  the  appellant 
should  pay  the  respondent's  costs  occasioned  by  the  appeal,  to  be  taxed 
by  the  taxing  master  (Notice  of  C.  A.,  February  26,  1904). 

As  to  an  application  at  chambers  under  sec.  66  of  the  County  Courts 
Act,  1888,  for  an  order  staying  all  proceedings  in  an  action  till  the 
plaintiff  give  security  for  costs,  see  Stay  of  Proceedings. 

3.  In  the  House  of  Lords. — A  party  presenting  a  petition  of  appeal 
to  the  House  of  Lords  is  required  by  the  Standing  Orders  of  the  House 
to  give  security  for  costs  by  recognisance,  either  in  person  or  by  sub- 
stitute, to  the  amount  of  £500,  and  a  bond  for  £200,  or,  in  lieu  of  the 
bond,  by  payment  of  £200  into  the  Fee  Fund  of  the  House  (see  Standing 
Order  4;  Appellate  Jurisdiction  Act,  1876,  39  &  40  Vict.  c.  59,  s.  11; 
Annual  Practice,  1908,  vol.  ii.  p.  765),  These  securities  must  be  given 
by  every  appellant,  whether  he  appeals  on  his  own  behalf  or  in  a  repre- 
sentative capacity,  within  one  week  after  the  presentation  of  the  appeal 
to  the  House ;  otherwise  the  appeal  stands  dismissed.  The  whole  sum 
of  £700  is  then  subject  to  the  order  of  the  House  with  regard  to  the 
costs  of  the  appeal  (see  Standing  Orders  4  and  10).  No  recognisance  is 
required  from  the  Attorney-General,  Lord- Advocate,  or  other  officer  of 
the  Crown  suing  on  behalf  of  the  Crown  {Lord  Advocate  v.  Lord  Dunglas, 
1842,  9  CI.  &  Fin.  173);  nor  from  persons  suing  in  fornid  pauperis. 


208  SECURITY  FOR  GOOD  BEHAVIOUR 

When  the  Attorney-General  prosecutes  at  the  instance  of  relators,  the 
latter  must  enter  into  the  recognisance  (Den.  &  Scott,  51). 

Security  for  costs  may  be  dispensed  with  if  the  respondent  consents ; 
the  course  is  to  present  a  petition  for  the  purpose,  and  on  this  an  order 
is  made  {Harvey  v.  Farnie,  1882,  8  App.  Gas.  64). 

Security  for  Good  Behaviour.— See  Articles  of  the 

Peace. 

Security  for  Keeping  the  Peace.  — See  Good 
Behaviour  ;  Recognisance. 

Security;  Securities. — The  expression  "security,"  or 
"  security  for  money,"  is  not  one  of  very  precise  or  well-defined  meaning, 
but  it  may  be  taken  generally  to  include  every  document  or  transaction 
by  which  the  payment  of  money  is  assured,  or  its  recovery  facilitated ; 
as  distinguished,  for  instance,  from  a  mere  evidence  of  debt  like  an 
I.  O.  U.  Thus  mortgages,  whether  legal  or  equitable,  and  whether  accom- 
panied by  a  written  memorandum  or  not,  bonds,  cheques,  promissory 
notes,  bank  notes,  bills  of  exchange,  judgments  {Ghtardians  of  West  Ham 
V.  Ovens,  1872,  L.  R.  8  Ex.  37),  turnpike  securities  (Cavendish  v.  Caven- 
dish, 1885,  30  Ch.  D.  227),  Exchequer  bills,  and  stock  in  the  funds — are 
all  securities.  But  shares  in  companies  are  not  {l7i  re  Mason's  Will, 
1865,  34  Beav.  494 ;  55  E.  R.  726),  nor  is  an  unpaid  legacy  (ibid.),  nor 
are  bank  stock  nor  canal  shares  (Ogle  v.  Knipe,  1869,  L.  R.  8  Eq.  434); 
but  the  context  must  be  looked  to.  It  is  doubtful  whether  at  the  pre- 
sent day  the  word  "  securities  "  in  a  legal  document  in  the  absence  of 
context  includes  stocks  and  shares  as  well  as  mortgages  on  land  or 
other  property  {In  re  Rayner,  Raynery.  Rayner,  [1904]  1  Ch.  176);  and 
it  has  even  been  held  that  an  I.  0.  U.  would  not  pass  under  a  bequest  of 
"  securities  for  money  "  {Barry  v.  Harding,  1844,  1  Jo.  &  Lat.,  at  p.  483). 
See  the  above-mentioned  instruments  discussed  under  their  appropriate 
headings  in  the  other  parts  of  this  work. 

A  bequest  of  "  securities  for  money "  will  pass  the  legal  estate  in 
mortgaged  property  {In  re  King's  Mortgage,  1852,  5  De  G.  &  Sm.  644 ; 
64  E.  R.  1281 ;  Theobald  on  Wills,  1908  ed.,  pp.  93,  94,  and  cases  there 
cited).  Money  due  to  a  testator  in  respect  of  which  he  had  a  vendor's 
lien  for  unpaid  purchase  money  will  also  pass  {Callow  v.  Callow,  1889, 
42  Ch.  D.  550,  where  Goold  v.  league,  1858,  7  W.  R.  84 ;  5  Jur.  N.  S. 
116,  was  doubted).  See  also  cases  cited  in  Theobald,  ihid.,  at  pp. 
202,  203. 

A  power  to  lend  on  "  personal  security  "  is  ambiguous ;  it  may  either 
mean  on  the  security  oi  personal  property,  or  on  the  security  of  somebody's 
personal  undertaking.  See  Forbes  v.  Ross,  1788,  2  Bro.  C.  C.  430 ; 
29  E.  R.  240;  Richard  v.  Anderson,  1872,  L.  R.  13  Eq.  608,  where 
money  which  had  been  advanced  to  the  husband  prior  to  the  marriage 
on  his  note  of  hand  was  allowed  to  remain  in  his  hands  on  his  giving 
the  trustees  a  bond  for  the  amount,  A  power  to  lend  on  "  real  or 
personal  security"  does  not  warrant  an  unsecured  advance  {Langston 
V.  Ollivant,  1807,  G.  Coop.  33;  14  R.  R.  213;  Boss  v.  Godsall,  1842, 
1  Y.  &  C.  C.  617 ;  62  E.  R.  1042);  nor  will  it  justify  trustees  in  lending 

the  money  to  one  of  themselves  ( v.  Walker,  1828,  5  Russ.  7 ; 

54  E.  R.  567). 

A  power  to  lend  upon  security  of  the  funds  of  a  company  will  not 


SEDITION;  SEDITIOUS  WOEDS  909 

?hf„kT"tuS  t'  '""f  "^'"^  «'■"  ''  wasteld  thaTthe^S  ""shall 
made,  but  which  proved  nnSr^iw„/  a        "S  *•".  '"^^tment  honestly 

ihrfnVesttn\"L^\  nabL^'cS')  ""l  t"  ""f  *"'^''  '^  "^^^^ 
<;M<T€tt<m  of  the  trustee  "  wpLhluf  .  P?""  'o  '"^^t  "»'  the 
the  securities  of  he  United^t^^f  T^  *""'°™"  *"  "'vestment  on 
Abraham,  1873  LE  17  Eo  24    ,^/    ^"«"<^»  always  (&<M/  v. 

invest  on  the  "deb;„t„es^>_^,»i,f»h«  construction  of  a  power  to 

c^„  carrying  on  buaiLrinTny  part  of  tYe  UnS  ^•"'5'''  '^''^ 
t  /n  «  MaTy,  iJicfett  V.  Sharp,  1890  45  Ch  I)  %S«      A  ^/"gdom,"  see 

I  public  company,  see  In  re  7„U,\tmn  Ch   afo  12o  ^tj^^l  \^ 

i  meanmg  of  "  any  company  incorporated  by  Act  ItV^Zi     ,'"  ""^ 

■^  Elve  V.  Boyton,  [1891]  1  Ch    501  I'arliament,    see 

co.7anrb;^r„'':r;hitaor7^h""i-"r'r^'«^-^^ 

are  changed  and  trastei  cann„7^„„H        f  W*  '»'nP»»y.  conditions 
re  CaetleLo,  [19(kI]  1  C^  352)    "°""""''  *"  '"''<'  *"*'  ""e  change  (In 

creating  the  t^ruttHh     T^rlT  189^ '.fi'T??'^^'  ("  ""y) 
Part  I.,  and  the  article  Trusts  '  ^  *  "  ^""-  <=■  53. 

secuf  *;tsr  frovr?:ri;is"'wtieX^ ;'  '^.-"k-"'^'  "•"  «  ^ 

proving  a  debt  without  disclosing  a  hen  on  pronertv  fnV  il^  ^;  ■   ^° 

act,!r^^'p\'brh'anfw^^dVrifin^;^"bri^-'/  t  T'f""  ^^  ^°  ^^ 
the  person  of  His  Maiestv  hi«  S  ^  """  ''*"'^''  °f  contempt 

and  constitution  of  X^Kd  Kin 'dn?n  ^rf''' '"'  ""«  government 
House  of  Parhament  or  tofxcite fcafj^.  ^"k'"'*''"''^"*  "'  ^''her 

any  person  to  commit  any  crime  TLturba^^^^^^  "^     *^^  '"'^^^ 

VOL.  XIII.  aiscurbance  of  the  peace,  or  to  raise 


210  SEDITION;  SEDITIOUS  WORDS 

discontent  or  disaffection  amongst  Her  Majesty's  subjects,  or  to  promote 
feelings  of  ill-will  and  hostility  between  different  classes  of  such  subjects." 
To  do  any  such  act,  or  to  publish  any  such  words,  whether  written  or 
spoken,  is  a  misdemeanour  and  a  misprision,  for  which  either  an  informa- 
tion or  an  indictment  will  lie ;  and  the  offender  may  be  sentenced  to  a 
term  of  imprisonment  of  any  length,  or  to  a  fine  of  any  amount,  or  both, 
or  in  less  serious  cases  may  be  required  to  find  securities  for  his  good 
behaviour  {Ex  'parte  Seymour  and  Michael  Bavitt,  1883,  12  L.  R.  Ir.  46 ; 
15  Cox  C.  C.  242).  If  two  or  more  agree  together  to  do  any  such  act 
or  to  publish  any  such  words,  each  is  guilty  of  a  seditious  conspiracy. 
None  of  these  offences  can  be  tried  at  Quarter  Sessions.  The  defendant 
cannot  urge  as  a  defence  that  the  words  are  true  (Ex  parte  William 
O'Brien,  1883,  12  L.  R.  Ir.  29),  as  Lord  Campbell's  Act  does  not  apply 
to  seditious  libels. 

Intent. — It  is  not  necessary  for  the  prosecution  to  prove  expressly 
that  the  defendant  intended  and  desired  any  of  the  results  stated  above : 
it  is  sufficient  that  his  acts  or  words  tended  to  produce  such  a  result. 
The  defendant  will  be  presumed  to  have  intended  those  consequences 
which  would  flow  naturally  from  his  conduct.  And  that  presumption 
(if  indeed  it  is  ever  rebuttable)  will  not  be  rebutted  merely  by  proof 
that  the  defendant  did  not  at  the  time  contemplate  or  expect  that  such 
consequences  would  follow.  It  is  always  a  question  for  the  jury  whether 
his  acts  or  words  would  or  would  not  in  fact  tend  to  produce  any  of  the 
results  stated  above ;  if  they  would,  public  safety  demands  their  repres- 
sion. But  a  publication  is  not  a  seditious  libel  unless  it  affects  the 
government  of  this  country.  Hence,  if  the  words  complained  of,  though 
published  in  this  country,  do  not  tend  to  disturb  the  peace  and  tran- 
quillity of  the  United  Kingdom,  but  only  of  some  foreign  country,  they 
are  not  a  seditious  libel,  and  are  not  punishable  here  as  such  (H.  v. 
Antonelli,  1906,  70  J.  P.  4),  although  they  may  possibly  be  indictable 
here  as  a  personal  libel  upon  the  individual  sovereign  attacked  (E.  v. 
Peltier,  1803,  28  Howell's  St.  Tr.  617;  R  v.  Most,  1881,  7  Q.  B.  D.  244). 

Treasonable  Wards. — Words  merely  spoken  cannot  amount  to  treason ; 
though  they  may  to  sedition,  "  Unless  it  be  by  some  particular  statute, 
no  words  will  be  treason  "  {Hugh  Pine's  Case,  1629,  Cro.  Car.  117;  79  E.  R. 
703).  Blackstone  (vol.  iv.  c.  6),  indeed,  repeats  the  story  that  in  the  reign 
of  Edward  iv.,  a  gentleman  called  Thomas  Burdett,  whose  favourite  buck 
the  King  had  killed  in  hunting,  was  convicted  of  high  treason  for  saying : 
"  I  wish  it  were,  horns  and  all,  in  the  belly  of  him  who  advised  the  King 
to  shoot  it."  But  the  story  is  apocryphal.  The  charge  against  Burdett 
was  of  a  much  more  serious  nature ;  and  these  idle  words  of  his  are  not 
anywhere  alluded  to  in  the  indictment  against  him  {Middle  Ages,  c.  viii. 
ad  fin).  It  is,  however,  sedition  to  speak,  as  well  as  to  write  and  publish, 
of  the  Sovereign  any  words  which  deny  his  title  to  the  Crown,  or  call 
his  legitimacy  in  question,  or  impute  that  he  is  insane  {R.  v.  Harvey  and 
Chapman,  1823,  2  Barn.  &  Cress.  257 ;  26  R.  R.  337),  or  corrupt,  or 
immoral  in  his  private  life,  or  perjured  {St.  Johns  Case,  1615,  Noy,  105 ; 
74  E.  R.  1070) — any  words,  in  short,  which  would  be  libellous  and  action- 
able per  se  if  printed  and  published  of  any  other  public  character.  But 
to  assert  that  the  King  is  misled  by  his  ministers,  or  is  wrong  in  his  policy, 
is  no  crime. 

By  sec.  3  of  the  11  &  12  Vict.  c.  12,  however,  to  express,  utter,  and 
declare,  by  open  and  advised  speaking,  certain  traitorous  compassings, 
imaginations,  inventions,  devices,  or  intentions,  is  made  treason-felony. 


SEDITION;  SEDITIOUS  WORDS  211 

The  phrase  "  advised  speaking  "  means  that  the  words  must  be  spoken 
deliberately,  not  merely  "  a  casual  expression  dropped  inadvertently " 
(see  Heath  v.  Burcler,  1862,  15  Moo.  P.  C,  at  p.  80 ;  15  E.  R.  394).  By 
an  entirely  obsolete,  but  still  unrepealed,  provision  (13  Car.  Ii.  stat.  i. 
c.  1,  s.  3),  any  person  who  maliciously  and  advisedly  declares  and 
publishes  by  writing,  printing,  preaching,  or  other  speaking  that  the 
Parliament  begun  at  Westminster  on  November  3,  1640  (the  Long 
Parliament),  is  not  yet  dissolved,  or  that  it  still  ought  to  be  in  being,  or 
hath  yet  any  continuance  or  existence,  or  that  both  Houses  of  Parliament 
or  either  House  of  Parliament  have  or  hath  a  legislative  power  without 
the  King,  or  any  other  words  to  the  same  effect,  incurs  the  penalties 
of  a  prcemunire.  So  by  the  6  Anne,  c.  7  (al.  41),  s.  1,  passed  in  1707, 
"  maliciously,  advisedly,  and  directly,  by  writing  or  printing,  to  main- 
tain and  affirm  "  that  Queen  Anne  was  not  the  rightful  Queen,  that  the 
Pretender  or  anyone  else,  except  the  descendants  of  the  Electress  Sophia, 
had  any  right  or  title  to  the  Crown,  or  that  an  Act  of  Parliament  could 
not  bind  the  Crown,  and  limit  the  descent  thereof,  was  made  high 
treason;  publication  does  not  appear  to  be  requisite  to  complete  the 
offence  created  by  this  statute.  See  also  the  36  Geo.  iii.  c.  7,  made 
perpetual  by  the  57  Geo.  in.  c.  6,  and  the  11  &  12  Vict.  c.  12,  s.  3. 
The  Statutes  of  Scaiulalum  Magnatum  were  all  repealed  by  the  Statute 
Law  Revision  Act,  1887,  50  &  51  Vict.  c.  59. 

Attacks  on  the  Government,  the  Constitution,  or  the  Law  generally. — A 
libel  on  an  individual  minister  may  of  course  be  ground  for  an  indict- 
ment or  a  criminal  information.  But  it  is  very  seldom  now  in  England 
that  any  attack  on  the  Cabinet  or  the  Government,  as  a  whole,  is 
regarded  as  seditious ;  while  our  constitution  and  laws  are  constantly 
abused  and  misrepresented  with  perfect  impunity.  It  is  true  that  there 
are  ancient  dicta  to  the  effect  that  any  publication  tending  to  "  possess 
the  people  with  an  ill  opinion  of  the  Government "  is  a  seditious  libel 
{per  Holt,  C.J.,  in  R.  v.  Tuchin,  1704,  5  St.  Tri.  532,  and  EUenborough, 
C.J.,  in  R.  V.  Cohhett,  1804,  29  How.  St.  Tr.  49).  But  no  one  would 
accept  that  doctrine  now.  Unless  the  words  used  directly  tend  to 
foment  riot  or  rebellion,  or  otherwise  to  disturb  the  peace  and  tran- 
quillity of  the  kingdom,  the  utmost  latitude  is  allowed  in  the  discussion 
of  all  public  affairs.  "  The  people  have  a  right  to  discuss  any  grievances 
they  may  have  to  complain  of "  {per  Littledale,  J.,  in  R.  v.  Collins,  1839, 
9  Car.  &  P.  461).  "A  journalist  may  canvass  and  censure  the  acts  of 
the  Government  and  their  policy — and  indeed  it  is  his  duty  "  {per  Fitz- 
gerald, J.,  in  R.  V.  Snllivan,  1868,  11  Cox  C.  C.  54).  See  Liberty  of 
THE  Press,  Vol.  VIII.  p.  155,  and  an  interesting  article  on  the  Indian 
Press  Prosecutions  in  the  Law  Qvxirterly  Review  for  January  1898. 

Attacks  on  either  House  of  Parliament  are  seldom  now  treated  as 
sedition,  though  in  law  they  may  amount  to  this  offence.  Three  prose- 
cutions for  "scandalous  and  seditious  libel"  were  instituted  by  the 
House  of  Commons  in  the  eighteenth  century,  but  they  all  three  failed. 
Such  publications  are  also  a  contempt  of  the  House,  and  can  be,  and 
generally  are,  punished  as  such  (see  Parliament,  Contempt  of)  ;  and 
so  is  an  attack  on  an  individual  member  of  either  House. 

Attacks  on  Courts  of  Justice  and  on  Jiulges. — It  is  also  a  misdemeanour 
to  speak  or  to  write  and  publish  words  defamatory  of  any  Court  of 
Justice,  or  of  the  administration  of  the  law  therein,  with  intent  to 
obstruct  or  invalidate  its  proceedings,  to  annoy  its  officers,  to  diminish 
its  authority  and  dignity,  and  to  lower  it  in   public  esteem.      It  is 


212  SEDUCING  TO  LEAVE  SERVICE 

immaterial  whether  the  words  be  published  in  the  presence  of  the 
Court  or  at  a  time  when  the  Court  is  not  sitting,  and  at  a  distance  from 
it  (Crawford's  Case,  1849,  13  Q.  B.  613 ;  78  R  R.  479).  But  "  there  is 
no  sedition  in  just  criticism  on  the  administration  of  the  law.  ...  A 
writer  may  freely  criticise  the  proceedings  of  Courts  of  justice  and  of 
individual  judges — nay,  he  is  invited  to  do  so,  and  to  do  so  in  a  free  and 
fair  and  liberal  spirit.  But  it  must  be  without  malignity,  and  not 
imputing  corrupt  or  malicious  motives"  (per  Fitzgerald,  J.,  in  B.  v. 
Sullivan,  1868,  11  Cox  C.  C.  50;  and  see  Contempt  of  Court,  Vol. 
III.  p.  497). 

Seducing^  to  leave  Service. — See  Master  and 
Servant. 

Seduction. — In  the  earlier  stages  of  the  common  law  a  wife, 
and  minor  children,  and  servants  were  regarded  as  occupying  a  subser- 
vient, if  not  unfree,  status,  and  the  paterfamilias  was  considered  to  have 
a  right  to  the  consortium  of  his  wife,  to  the  custody  of  his  children,  and 
the  services  of  wife,  children,  and  servants,  which  he  could  vindicate 
(1)  by  action  for  damages  if  deprived  by  any  other  of  such  consortium, 
custody,  or  services  (as  regards  the  wife  the  writ  T8iU,per  quod  consortium^ 
as  regards  the  children  and  servants,  per  quod  servitium,  amisit);  (2)  by 
the  writ  de  homine  re2degiando,  or  writ  of  habeas  corp^is,  to  recover  the 
custody  or  possession  of  a  member  of  his  family  who  was  abducted  or 
enticed  from  under  his  roof. 

This  right,  with  respect  to  servants,  also  existed  in  favour  of  a  lord 
of  the  manor  over  his  serfs  (adscripti  glebw),  who  were  enticed  away  or 
fled  their  service ;  and  while  the  existence  of  chattel  servitude  in  England 
at  any  time  is  disputable  (see  Somersett's  Case,  1772,  20  St.  Tri.  1),  the 
position  of  domestic  servants  in  early  times  partook  of  the  nature  of 
status  rather  than  contract ;  and  "  bond  servants  "  whether  apprentices 
under  age  or  adults  (see  31  Chas,  ii.  c.  2,  s.  13),  or  servants  assigned  by 
justices,  were  certainly  within  the  rule  as  to  the  householder's  rights 
above  enunciated. 

A  statute  of  1285,  still  unrepealed  (13  Edw.  i.  Stat.  West.  Sec.  c.  34), 
entitled  a  religious  house  from  which  a  nun  is  taken,  even  with  her  con- 
sent, to  satisfaction  for  the  taking,  in  addition  to  the  criminal  liability 
involved. 

1.  As  regards  the  wife,  the  cause  of  action  in  favour  of  the  husband 
still  remains  as  against  persons  who  abduct  her,  or  entice  or  keep  her 
away  from  him  without  her  assent,  or  who  harbour  or  maintain  her 
after  she  has  deserted  his  society  (Clerk  and  Lindsell,  Torts,  3rd  ed.). 

Where  the  wife  committed  adultery,  whether  she  eloped  or  not,  the 
action  developed  into  one  for  "  criminal  conversation,"  and  exemplary 
damages  could  be  awarded  (see  13  Edw.  i.  Stat.  West.  Sec.  c.  34).  The 
action  could  be  framed  in  "  trespass  "  or  in  "  case  "  (Norfolk  (Duke  of)  v. 
Germaine,  1692,  12  St.  Tri.  927 ;  Chamberlain  v.  Hazlewood,  1839,  5  Mee. 
&  W.  515 ;  Pollock,  Torts,  7th  ed.). 

This  form  of  action  is  still  in  use  in  Ireland,  but  has  been  abolished 
in  England,  and  replaced  by  a  claim  in  a  divorce  suit  for  damages 
against  the  co-respondent  (20  &  21  Vict.  c.  85,  ss.  33,  59).  The  petitioner 
however,  cannot  recover  damages  unless  he  shows  himself  entitled  to  a 
decree  against  the  respondent  (see  Bernstein  v.  Bernstein,  [1893]  P.  292;, 
Evans  v.  Evans,  [1890]  P.  195). 


SEDUCTION  213 

There  does  not  appear  to  be  at  common  law  any  converse  action  in 
favour  of  a  wife  for  loss  of  the  consortium  of  her  husband  {Lynch  v. 
Knight,  1861,  9  H.  L.  C.  577 ;  11  E.  R.  854).  In  fact  the  history  of  the 
wife's  status  makes  such  a  claim  unsustainable  at  common  law. 

Questions  have  arisen  whether  an  action  lies  for  persuading  or 
enticing  a  wife  to  live  separate  from  her  husband  without  sufficient 
cause  without  proof  of  adultery  (see  Winsmore  v.  Greenbank,  1745, 
Willes,  577).  The  husband  has  a  remedy  against  the  wife  by  suit  for 
restitution  of  conjugal  rights :  and  there  is  a  quite  modern  precedent 
of  a  successful  action  against  third  parties  ( Wright  v.  Kaye,  1904,  20 
T.  L.  R.  261).  If  the  wife  were  taken  away  against  her  will,  the  remedy 
would  be  by  habeas  corpus. 

2.  Children  under  twenty-one  were  at  common  law  in  the  custody 
of  the  father,  or,  on  his  death,  of  the  person  who  stood  in  loco  parentis. 
Anyone  taking  them  away  from  his  custody  was  liable  to  an  action ; 
and  he  was  entitled  to  damages  for  any  consequent  loss  of  services  to 
him,  if  the  child  was  old  enough  to  render  any  {Evans  v.  Walton,  1867, 
L.  R.  2  C.  P.  615;  Hall  v.  Hollander,  1825,  4  Barn.  &  Cress.  660; 
28  R.  R.  437 ;  Eversley,  Domestic  Relations,  3rd  ed.). 

The  rule  extended  to  all  abductions,  etc.,  of  a  person  subject  to 
wardship  (13  Edw.  i.  Stat.  West.  Sec.  c.  35 ;  and  see  Abduction).  By 
12  Chas.  II.  c.  24,  s.  8,  guardians  appointed  under  the  Act  are  entitled 
to  maintain  an  action  of  ravishment  of  ward  or  trespass  against  persons 
wrongfully  taking  away  or  detaining  their  wards.  The  damages  are 
recoverable  for  the  benefit  of  the  children. 

Children  over  twenty -one,  unless  rendering  actual  service,  were  not 
within  this  rule,  but  in  the  position  of  ordinary  servants. 

3.  As  to  servants,  see  Master  and  Servant,  Vol.  IX.  p.  51. 

4.  As  the  cause  of  action,  in  the  case  of  a  husband,  developed  into 
that  of  crim.  con.  where  his  wife  was  debauched,  so  in  the  case  of  female 
children,  the  father  or  guardian,  and  in  the  case  of  female  servants,  the 
employer,  has  gradually  acquired  a  right  of  action  for  seduction  in  the 
popular  sense,  i.e.  for  the  debauching  or  ill-treatment  of  such  child  or 
servant.     The  action  retains  evidence  of  its  historical  origin  in  that — 

(a)  There  must  be  proof  of  actual  service  of  some  kind,  however 
slight,  at  the  date  of  the  seduction  or  ill-treatment  {Hedges  v.  Tagg, 
1872,  L.  R.  7  Ex.  283 ;  Whitboiirne  v.  Williams,  [1901]  2  K.  B.  722 
(C.  A.);  Hamilton  v.  Long,  [1904]  2  Ir.  Rep.  403). 

(b)  The  child  or  servant  must  have  been  rendered  ill  and  incapable  to 
render  service  in  consequence  of  the  seduction,  etc.,  apparently  whether 
it  did  or  did  not  result  in  pregnancy  and  confinement  {Manvell  v. 
Thomsm,  1826,  2  Car.  &  P.  303 ;  31  R.  R.  666 ;  Eager  v.  Grimwood,  1847, 
1  Ex.  61). 

The  action  was  originally  treated  as  an  action  of  trespass  {Edmondson 
V.  Machell,  1787,  2  T.  R.  4).  In  modern  practice  this  form  of  action  is  a 
mere  peg  upon  which  is  hung  a  proceeding  of  a  quite  distinct  character 
for  exemplary  damages  for  the  dishonour  to  the  parent  or  employer, 
and  loss  of  society  and  comfort  as  well  as  service,  or  as  a  means  of 
indirectly  obtaining  a  solatium  for  the  woman  seduced,  where  corrobora- 
tive evidence  of  a  promise  of  marriage,  upon  which  the  woman  can  sue, 
is  not  available  {Irivin  v.  Dearman,  1803,  11  East,  23;  10  R.  R.  423; 
and  see  Millington  v.  Loring,  1881,  6  Q.  B.  D.  190). 

From  this  point  of  view  the  following  rulings  have  been  given : — 
(a)  A  girl  under  twenty-one  is  presumed  to  be  in  the  service  of  her 


214  SEEDS 

father  (or  other  person,  who  stands  ioi  loco  parentis,  with  whom  she  lives) 
whenever  she  is  not  actually  in  the  service  of  another  {TeiTy  v.  Hutchin- 
son, 1868,  L.  E.  3  Q.  B.  599),  or  where  she  has  been  got  by  the  defendant 
into  his  service  for  the  purpose  of  seducing  her  (Speight  v.  Oliveira, 
1819,  2  Stark.  (K  P.)  493  ;  20  R.  R  728).  When  a  girl  is  in  the  service 
of  another  evidence  that  when  she  went  home  on  her  weekly  outing 
and  helped  in  the  household  is  not  enough  to  make  her  servant  to  her 
father  (  Whithmirne  v.  Williams,  [1901]  2  K.  B.  722).  In  Hamilton  v. 
Long,  [1903]  2  Jr.  Rep.  403,  the  mother  of  a  girl  was  held  not  entitled 
to  sue  in  respect  of  the  seduction  of  her  daughter,  which  occurred  during 
the  father's  lifetime.  The  girl  was  twenty-five,  and  after  her  father's 
death  lived  with  the  mother,  helping  her  in  the  household  duties. 

(Jb)  Evidence  of  an  actual  contract  of  service  is  not  necessary,  but 
some  slight  service  de  facto,  not  necessarily  menial  service,  must  be 
proved,  in  all  cases  where  the  girl  is  not  under  twenty-one  {Harper  v. 
LiiffUn,  1827,  7  Barn.  &  Cress.  387 ;  31  R.  R.  236 ;  Evans  v.  Waltcm,  1867, 
L.  R.  2  C.  P.  615 ;  OBeilly  v.  Glavey,  1892,  32  L.  R.  Ir.  316). 

(c)  The  action  is  not  barred  by  an  adjudication  of  justices  in  bastardy 
proceedings  that  the  defendant  is  not  father  of  the  child  (Anderson  v. 
Collinson,  [1901]  2  K.  B.  107). 

(d)  The  damages  are  not  limited  to  the  actual  loss  of  service  or  the 
expenses  of  the  girl's  illness  or  confinement,  but  may  be  exemplary  and 
aggravated  by  the  circumstances  of  the  seduction  {Irwin  v.  Dearman, 
1809,  11  East,  23 ;  10  R.  R.  423 ;  Applehy  v.  Franklin,  1886,  17  Q.  B.  D. 
93),  or  mitigated  by  the  position  of  the  parties,  conduct  of  the  plaintiff, 
or  the  levity  of  the  girl  seduced.  But  the  means  of  the  defendant  are 
immaterial  (Hodsoll  v.  Taylor,  1874,  L.  R.  8  Q.  B.  79).  Damages  recovered 
on  this  action  are  not  extinguished  by  an  order  of  discharge  in  bank- 
ruptcy, except  to  such  extent  and  on  such  conditions  as  are  determined 
by  special  order  of  the  Court  (53  &  54  Vict.  c.  71,  s.  10).  This  subject 
is  fully  dealt  with  in  Clerk  and  Lindsell,  Torts,  3rd  ed.,  207-212 ;  Addison 
on  Torts,  6th  ed.,  851 ;  Pollock  on  Torts,  7th  ed. ;  Roscoe,  Nisi  PHus, 
18th  ed.,  vol.  ii.  p.  909. 

(e)  The  action  is  not  triable  in  a  county  court  except  by  consent  of 
the  parties  (52  &  53  Vict.  c.  43,  ss.  56,  64). 

5.  Seduction,  in  the  ordinary  sense,  is  not  a  criminal  offence,  where 
the  female  debauched  was  of  sufficient  age  to  be  legally  able  to  consent 
to  the  act,  unless  the  consent  has  been  obtained  by  such  fraud  as  to  be 
no  real  consent,  or  has  been  obtained  by  fraud  or  false  representations 
within  48  &  49  Vict.  c.  69,  s.  3  (2) ;  e.g.  where  a  married  man  seduces 
a  woman  of  good  character  under  a  promise  of  marriage,  coupled  with 
a  representation  that  he  is  single  {R.  v.  Williams,  1898,  62  J.  P.  310). 
See  Abduction  ;  Rape. 

Seeds .  — Adulterated. — See  Adulteration. 

Agricultural. — 1.  Adulteration  of  agricultural  seeds  is  summarily 
punishable  (32  &  33  Vict.  c.  112;  41  Vict.  c.  17)  by  a  penalty  of  £5  for 
a  first  and  £50  for  a  second  offence,  if  committed  with  intent  to  defraud, 
or  to  enable  others  to  defraud.  Such  adulteration  means — (1)  Killing 
seeds,  i.e.  destroying  artificially  their  vitality  or  germinating  power; 
(2)  dyeing  seeds,  i.e.  applying  to  them  any  process  of  dyeing,  colouring, 
or  sulphur  smoking  (41  Vict.  c.  17,  s.  2) ;  (3)  selling  killed  or  dyed  seeds. 
The  Act  of  1869  provides  for  the  mode  of  proving  intent  to  defraud  (s.  5), 
appeal  (s.  6),  time  for  proceedings  (s.  7),  costs  (s.  8),  and  publication  of  the 


b 


SEIGNOEY  215 

names  of  persons  convicted  (s.  3).  The  above  provisions  are  alternative 
to  existing  civil  remedies  (s.  9).  The  Acts  apply  to  the  whole  of  the 
United  Kingdom.  Except  as  above  stated,  the  law  as  to  the  sale  of 
seeds  does  not  in  England  differ  from  that  as  to  sale  of  any  other  goods. 

2.  As  to  the  sowing  of  poisoned  seeds,  see  Poison. 

Poisoned. — See  Poison. 

Seig'niorag'e. — The  profit  made  by  the  Government  on  the 
coining  of  money  is  so  termed.  In  early  reigns  a  seigniorage  was  levied 
on  both  gold  and  silver  coinage,  and  a  considerable  profit  accrued  to  the 
Crown  from  this  source.  The  Statute  18  Car.  ii.  c.  5,  s.  1,  abolished 
seigniorage  on  both  gold  and  silver,  and  since  then  no  seigniorage  has 
ever  been  levied  on  gold,  but  as  regards  silver  it  was  revived  by  56 
Geo.  III.  c.  68,  s.  9.  Owing  to  the  depreciation  in  the  value  of  silver  in 
recent  years  the  profit  on  the  coinage  of  silver  money  now  amounts  to 
a  large  sum.  The  Mint  authorities  purchase  silver  bars  at  the  market 
price,  which  in  1906  was  fractionally  over  two  shillings  and  sixpence  per 
ounce,  and  as  one  ounce  of  silver  is  coined  into  money  of  the  nominal 
value  of  about  five  shillings  and  sixpence,  the  rate  of  seigniorage  is 
about  112  per  cent.,  whereas  in  1870,  before  the  great  fall  in  the  price 
of  silver,  it  was  only  about  9  per  cent.  There  is  also  a  considerable 
seigniorage  on  bronze  coinage  (see  Annual  Report  of  the  Deputy  Master 
and  Comptroller  of  the  Mint  for  1906,  issued  in  1907).  See  Coin, 
British. 

SeigTIory . — A  seignory  is  the  lordship  remaining  to  the  grantor 
after  the  grant  of  an  estate  in  fee-simple.  Such  a  grant  deprives  the 
grantor  of  the  possession  of  the  property,  and  nothing  remains  but  the 
right  to  a  "  quit  "  or  "  chief  "  rent — now  almost  always  of  very  small 
amount,  owing  to  the  change  in  the  value  of  money — a  "  relief "  {q.v.)  of 
one  year's  quit  rent,  the  right  of  escheat  {q.v.)  on  the  death  of  a  tenant 
intestate  and  without  heirs,  and  the  obligations  on  the  tenant  to  attend 
the  Court  of  the  manor,  if  the  manor  still  exist,  and  to  tender  the  lord 
an  oath  of  fealty.  This  last,  however,  is  never  exacted,  and  a  quit  rent 
is  usually  not  paid. 

Since  1290,  the  date  of  the  Statute  Quia  Emptores,  it  has  been 
impossible  to  create  an  estate  in  fee-simple,  and  accordingly  all 
seignories  existing  must  date  from  a  period  earlier  than  that  year 
{cp.  Manor).  A  conveyance  of  the  manor  simply  will  comprise  the 
seignories,  and  attornment  by  the  tenant  to  the  new  owner  of  the  manor 
has  not  been  necessary  since  1706  (see  Attornment)  ;  but  if  the  seignory 
has  been  separated  from  the  demesne  lands  of  the  manor,  it  becomes 
a  seignory  in  gross,  which  must  be  conveyed  separately ;  and  though  the 
demesne  lands  subsequently  come  again  into  the  possession  of  the  lord, 
they  do  not  again  become  part  of  the  manor  so  as  to  pass  by  a  conveyance 
of  it,  unless  they  have  returned  to  the  lord  by  escheat  (Delachei'ois  v. 
Delacherois,  1862, 11 H.  L.  Cas.  62).  Freehold  land  may  be  enfranchised 
by  a  conveyance  of  the  seignory  to  the  freehold  tenant,  when  the  tenure 
is  merged  in  the  seignory,  and  the  services  are  extinguished ;  but  such 
an  enfranchisement,  unlike  one  of  copyholds,  does  not  extinguish  the 
tenant's  rights  of  common  {Baring  v.  Abingdon,  [1892]  2  Ch.  374 ;  Broome 
v.  Wenham,  1893,  68  L.  T.  N.  S.  651).  By  sec.  3  (2)  of  the  Settled  Land 
Act,  1882,  the  tenant  for  life  of  a  manor  is  empowered  to  sell  the 
seignory  of  any  freehold  land  within  the  manor ;  and  by  sec.  21  (5)  of 


216  SEISED;  COVENANT  TO  STAND  SEISED 

the  Act,  the  purchase  of  the  seignory  of  settled  freehold  land  is  an 
authorised  application  of  capital  money  arising  under  the  Act,  while  the 
same  section  (2)  authorises  the  redemption  of  chief  and  quit  rents  with 
it.  The  Board  of  Agriculture  (in  succession  to  the  Copyhold  Commis- 
sioners) are  required,  under  sec.  45  of  the  Conveyancing  Act,  1881,  to 
certify,  on  the  requisition  of  a  person  owning  or  interested  in  land  out 
of  which  a  quit  or  chief  rent  issues,  the  price  at  which  it  may  be 
redeemed,  and  (by  sub-sees.  (2)  and  (3)),  on  payment  of  the  amount,  to 
declare  the  land  absolutely  freed  and  discharged  from  the  rent.  And 
a  similar  power  is  given  to  both  lord  and  tenant  by  sees.  2  and  3  of  the 
Copyhold  Act,  1894,  57  &  58  Vict.  c.  46. 

As  to  ownership  of  mines,  see  article  Mines  and  Minerals. 

[Authorities. — Williams,  Beal  Property,  20th  ed. ;  Wolstenholme, 
Brinton,  and  Cherry,  Conveyancing  and  Settled  Land  Acts,  9th  ed.] 

Seised  ;  Covenant  to  stand  seised.— A  covenant  to 

stand  seised  is  one  of  the  assurances  whereby  the  legal  estate  could,  by 
virtue  of  the  Statute  of  Uses,  be  transferred  from  one  party  to  another 
without  delivery  of  possession.  This  conveyance,  like  that  by  bargain 
and  sale  (q.v.),  was  said  to  operate  by  virtue  of  the  Statute  of  Uses, 
instead  of  at  common  law;  and,  indeed,  it  was  the  statute  that  gave 
rise  to  this  form  of  conveyance  for  the  purpose  of  transferring  the  legal 
estate  (see  Assurances,  Vol.  I.  p.  581). 

The  conveyance  is  in  form  a  contract  under  seal  or  covenant  by  the 
intending  transferor,  to  stand  seised  to  the  use  of  the  intended  trans- 
feree, and  the  parties  are  usually  husband  and  wife,  parent  and  child, 
or  otherwise  closely  related.  But  for  the  Statute  of  Uses  the  effect  of 
the  covenant  would,  in  accordance  with  the  doctrines  of  equity,  be  merely 
to  raise  a  use  in  favour  of  the  person  to  whose  use  the  covenantor  con- 
tracts to  stand  seised,  i.e.  to  give  him  the  beneficial  interest  in  the 
property.  The  use  raised  by  equity  is  "  executed  "  in  possession  in  the 
beneficiary  by  virtue  of  the  statute,  and  he  thereby  acquires  the  legal 
estate  in  the  land  (see  Uses). 

Where  the  consideration  for  the  covenant  is  money,  the  conveyance 
is  a  bargain  and  sale  {g-v.);  where  there  is  no  consideration,  equity 
would  not  raise  a  use,  and  there  being  no  use  for  the  statute  to  execute, 
the  covenant  would  be  inoperative.  But  in  cases  above  noticed,  where 
the  covenant  is  between  kinsmen,  equity  would  look  upon  marriage  or 
natural  love  and  affection  as  a  good  consideration,  and  raise  a  use  (which 
the  statute  executed)  in  favour  of  the  covenantee.  For  these  reasons 
covenants  to  stand  seised  to  uses  were  restricted  to  this  class  of  cases ; 
they  have  in  modern  practice  been  completely  superseded  by  the  ordinary 
settlements,  and  the  transfer  directly  of  real  property  by  deed.  See 
Corporeal  Hereditaments;  Incorporeal  Hereditaments. 

Seisin  ;  Covenant  for  Seisin. — The  covenant  for  seisin, 

which  must  be  distinguished  from  the  covenant  to  stand  seised  to  uses, 
restricted  to  cases  where  equity,  regarding  marriage  or  natural  affection 
as  a  good  consideration  as  between  kinsmen,  raised  a  "  use  "  (which  the 
Statute  of  Uses  executed)  in  favour  of  the  covenantee,  was  the  first  of 
the  old  express  covenants  for  title :  the  unqualified  covenant  for  seisin 
was  to  the  effect  that  the  vendor  was  at  the  time  of  the  conveyance 
seised  to  him  and  his  heirs  of  a  good  and  indefeasible  estate  of  inherit- 
ance in  fee  simple  of  the  hereditaments  granted,  "  and  every  part  and 


SEISIN  (SEISED)  217 

parcel  of  the  same  with  the  appurtenances,  without  any  condition,  trust, 
power  of  revocation,  or  of  limitation  to  use  or  uses,  or  any  other  power, 
restraint,  cause,  matter,  or  thing  whatsoever,  to  alter,  change,  charge, 
defeat,  revoke,  make  void,  abridge,  lessen,  encumber  or  determine  the 
same  estate,  or  any  part  or  parcel  thereof "  (see  form  in  Piatt  on  Cove- 
naTds,  307).  This  covenant  was  followed  immediately  by  the  covenant 
for  right  to  convey ;  and  though  the  two  were  not  exactly  synonymous 
(for  although  the  person  having  the  seisin  has  the  right  to  convey,  the 
person  having  the  right  to  convey  need  not  be  the  person  seised),  the 
covenant  for  seisin  was  frequently  omitted,  being  in  fact  useless  where 
the  second  covenant  was  for  the  right  to  convey  in  fee.  See  Eight  to 
Convey  ;  Title,  Covenants  for. 

Seisin  (Seised). — The  earliest  meaning  of  the  word  is  posses- 
sion, and  it  was  applicable  to  personalty  as  well  as  realty.  The  connec- 
tion between  this  word  and  seize  has  given  rise  to  the  theory  that  seisin 
meant  a  forcible  or  violent  taking  of  possession ;  but  the  accepted  theory 
is  that  the  word  is  likewise  connected  with  sit  and  set,  and  that  "  the 
man  who  is  seised  is  the  man  who  is  sitting  on  the  land,"  the  root  being 
the  same  as  in  possessio.  To  our  medieval  lawyers  the  word  seisina 
suggested  the  very  opposite  of  violence :  it  suggested  peace  and  quiet. 
(See  6  Co.  Rep.  576,  cited  in  Pollock  and  Maitland,  Hist,  of  Eng.  Law^ 
vol.  ii.  30). 

Though  Bracton,  Littleton,  and  Coke  all  use  the  word  seisin  as 
denoting  possession,  whether  of  realty  or  personalty,  the  word  has  in 
modern  times  been  restricted  to  possession  of  freehold. 

Seisin  of  freehold  is  either  actual  (seisin  in  fact),  or  presumptive 
(seisin  in  law).  The  distinction  was  of  importance  before  the  Descent 
Act  (3  &  4  Will.  IV.  c.  106),  which  by  sec.  2  superseded  the  rule  of 
common  law  expressed  by  the  maxim  seisina  fadt  stipitem, "  seisin  makes 
the  stock  of  descent ; "  and  in  investigating  old  titles  the  distinction  may 
have  to  be  borne  in  mind. 

Seisin  in  deed  is  the  actual  possession  of  the  freehold  {e.g.  by  a  tenant 
for  life  in  possession),  as  contrasted  with  the  expectant  possession  {e.g. 
by  a  reversioner).  On  the  death  of  the  person  entitled  in  possession  to 
an  estate  of  inheritance,  the  law,  inasmuch  as  the  heir  is  entitled  to  the 
land,  presumes  that  the  heir  has  the  seisin ;  and  the  same  presumption 
arises  in  the  case  of  a  remainderman  or  reversioner  as  soon  as  the  par- 
ticular estate  {q.v.)  determines.  This  presumptive  seisin  is  called  seisin 
in  law,  and  requires  an  entry  by  the  heir,  remainderman,  or  reversioner 
to  become  actual  seisin  or  seisin  in  deed. 

But  seisin  in  law  being  but  a  presumption  of  law,  it  is  rebutted  by 
actual  possession,  whether  by  right  {e.g.  by  virtue  of  a  devise)  or  wrong : 
for  even  a  wrongful  possession  thus  taken  deprives  the  heir,  remainder- 
man, or  reversioner,  as  the  case  may  be,  of  his  seisin  in  law,  his  interest 
becoming  thereafter  but  a  right  of  entry  only.  The  wrongful  taking 
possession  is,  when  to  the  prejudice  of  the  heir,  called  abatement  {q.v.) ; 
when  to  the  prejudice  of  the  remainderman  or  reversioner,  it  is  called 
intrusion  {q.v.). 

The  maxim  of  the  common  law  as  to  descent  was  that  he  who  claims 
«a8  heir  in  fee  simple  must  make  himself  heir  to  him  that  was  last  seised 
of  the  actual  freehold  and  inheritance,  not  merely  to  one  who  had  a 
freehold  in  law  but  has  not  actually  entered  (Co.  Litt.  116).  Accord- 
ingly, seisin  in  law  was  not  sufficient  to  make  the  person  so  seised  a 


218  SELECT  VESTEY 

stock  of  descent.  The  need,  however,  for  distinguishing  the  two  kinds 
of  seisin  in  this  respect  has  been  done  away  with  by  the  provision  (sec.  2) 
of  the  Act  of  1833,  already  noticed,  which  enacts  that  in  every  case 
descent  shall  be  traced  from  the  purchaser,  i.e.  one  acquiring  the  land 
otherwise  than  by  descent,  the  last  owner  being  in  each  case  considered 
to  be  the  purchaser,  unless  the  contrary  be  proved. 

Besides  an  actual  entry  into  the  lands,  an  entry  into  part  thereof  in 
the  name  of  the  whole,  or  a  receipt  of  the  rents  and  profits,  will  give  a 
person  seisin  in  fact  (Comyns,  Dig.,  "  Seisin  "). 

Seisin  in  law,  though  it  implies  that  the  actual  possession  is  vacant 
(for  otherwise  there  would  be  a  right  of  entry  only),  is  nevertheless 
sufficient  to  prevent  the  freehold  from  being  in  abeyance  within  the  rule 
of  law  that  required  that  there  shall  always  be  some  tenant  in  possession 
to  discharge  his  services  to  the  lord,  and  the  rules  deduced  therefrom  as 
regards  the  creation  and  limitation  of  estates  at  common  law. 

The  creation  of  a  term  of  years  out  of  the  freehold  in  no  way  affects 
the  seisin  of  the  land,  for  the  seisin  is  in  the  freeholder ;  and  we  may 
take,  as  a  good  instance  of  the  consequences  of  this,  the  distinction  as 
regards  a  wife's  right  to  dower  in  the  case  where  the  husband,  seised 
of  an  estate  of  inheritance  grants,  (1)  a  life  estate;  or  (2)  a  term  of 
years  to  a  third  party,  and  dies.  In  the  former  case  he  is  not  seised  at 
his  death,  for  the  seisin  is  in  the  freeholder ;  in  the  latter  he  is,  and 
his  wife  is  consequently  entitled  to  dower  out  of  the  reversion  {cp.  Co. 
Litt.  32a). 

The  words  seisin  and  seised  are  still  strictly  construed  as  meaning 
possession  of  the  land ;  and  where  a  testator  devised  to  a  beneficiary  all 
real  estate  of  which  he  might  die  seised,  it  was  held  that  land  to  which 
the  testator  was  at  his  death  entitled,  but  on  which  a  third  party  had 
wrongfully  entered  and  whereof  the  testator  had  not  taken  actual  pos- 
session, did  not  pass  by  the  devise :  the  testator  having  no  seisin  at  law 
or  in  fact  {Leach  v.  Jay,  1878,  9  Ch.  D.  42). 

See  Abatement  of  Freehold,  Vol.  I.  p.  19 ;  Estates,  Vol.  V.  p.  334 ; 
Estates  of  Inheritance,  Vol.  V.  p.  341 ;  Feoffment,  Vol.  VI.  p.  48 ; 
and  Pollock  and  Maitland,  Hist,  of  Eng.  Law,  vol.  ii.  2%  et  seq. 

Select  Vestry. — See  Vestry. 

Self- Defence. — Every  person  is  entitled  to  defend  himself 
from  attack,  and  may  use  force  in  doing  so  {cp.  3  Black.  Com.,  120, 121). 
This  right  of  private  redress  extends  not  only  to  the  defence  of  one's 
own  person,  but  also  to  the  defence  of  a  husband  or  wife,  a  parent  or 
child,  or  even,  as  has  been  said,  a  master  or  servant  (ibid.  3 ;  ^.  v.  Hoss, 
1884,  15  Cox,  540).  It  also  extends  to  the  defence  by  a  man  of  his 
goods,  see  3  Bl.  Com.,  121 ;  Blades  v.  Eiggs,  1861, 10  C.  B.  K  S.  713,  and 
the  plea  of  self-defence,  if  made  out,  is  an  answer  to  civil  or  criminal 
proceedings.  A  person  attacked  may  use  as  much  force  as  he  reason- 
ably believes  to  be  necessary  to  defend  himself ;  and  he  may  even  kill 
his  assailant  if  this  extreme  step  is  necessary,  e.g.  where  he  reasonably 
believes  that  to  do  so  is  necessary  to  save  his  own  life  or  that  of  another, 
or  to  prevent  a  serious  crime  against  property.  The  question  has  been 
raised  as  to  whether  a  duty  exists  to  retreat  before  attack  (see  cases 
collected  in  Archbold,  Cr.  PL,  23rd  ed.,  797).  The  apparent  danger 
measures  the  extent  of  the  force  which  may  be  employed  in  self-defence ; 
a  person  who  has  been  assaulted  by  a  blow  with  the  hand  may  not 


SEPARATION  219 

retaliate  with  a  deadly  weapon ;  but  where  the  assailant  uses  such  a 
weapon,  the  person  attacked  may,  if  he  cannot  otherwise  protect  his 
life,  take  the  life  of  the  aggressor.  In  a  recent  case,  it  was  said  that 
before  a  person  charged  with  manslaughter  can  avail  himself  of  the 
defence  that  he  acted  in  defence  of  his  life,  he  must  satisfy  the  jury 
that  the  defence  was  necessary;  that  he  did  all  he  could  to  avoid 
it,  and  that  it  was  necessary  to  protect  his  own  life,  or  to  protect  him- 
self from  such  serious  bodily  harm  as  would  give  him  a  reasonable 
apprehension  that  his  life  was  in  immediate  danger  {B.  v.  Symondson, 
1896,  60  J.  P.  645,  quoting  R  v.  Smith,  1837,  8  Car.  &  P.  162). 

In  R.  v.  Symondson,  supra,  it  was  said  that  for  manslaughter  to  be 
justifiable  in  repelling  an  attack  upon  property,  the  prisoner  must  show 
that  the  infliction  of  death  was  to  prevent  no  ordinary  crime,  but  a 
crime  of  a  serious  and  felonious  nature  intended  to  be  carried  out  by 
force. 

\_Authorities. — Those  cited,  and  Pollock  on  Torts,  7th  ed. ;  Steph., 
Dig.  Cr.  Law,  6th  ed. ;  Archb.,  Cr.  PL,  23rd  ed.,  791,  796 ;  Addison  on 
Torts,  6th  ed.,  67,  68 ;  Clerk  and  Lindsell  on  Torts,  3rd  ed.] 

Selion — The  name  sometimes  given  to  one  of  the  subdivisions 
into  which  the  arable  lands  of  a  township  were  parcelled  out.  The 
lands  were  divided  into  furlongs,  shots,  or  quarentenae,  and  these  again 
were  subdivided  into  strips,  each  of  which  was  called  a  selion  or  ridge, 
usually  an  acre  in  extent.  Selions  or  ridges  were  separated  by  balks 
(see  Balk  ;  Norton,  Interpretation  of  Deeds,  s.v.  "  Common  Fields," 
p.  566). 

Seneschal. — Originally,  says  Professor  Skeat  {Etymol.  Diet.), 
this  word  denoted  an  old  or  chief  servant,  the  word  being  derived  from 
the  Gothic  sins,  old,  and  skalks,  a  servant.  It  afterwards  came  to  mean 
a  steward,  in  which  sense  it  is  used  in  Co.  Litt.  61a. 

Sentence  (Sententia).— This  term  is  now  applied— (l)  to 
the  judgment  of  a  Court  of  criminal  jurisdiction  imposing  on  a  person 
convicted  a  punishment  such  as  fine  or  imprisonment ;  (2)  to  any  decree 
of  an  Ecclesiastical  Court  (Phillimore,  Eccl.  Law,  2nd  ed.,  965,  1041); 
(3)  to  decisions  of  Courts  of  Admiralty,  prize  Courts,  or  Crown  officials 
condemning  ships  or  goods  (see  6  Seld.  Soc.  Publ.  Ixiv.  41,  181),  where 
the  old  Admiralty  procedure  is  stated.  The  term  is  imported  from  the 
civil  or  canon  law.  In  the  first  case  the  term  does  not  appear  in  the 
formal  judgment.  In  cases  (2)  and  (3)  it  is  distinguished  as  "  definitive," 
or  "final"  and  "interlocutory."  The  common  element  appears  to  be 
that  a  sentence  is  an  order  affecting  the  status  of  the  person  against 
whom  it  is,  or  the  title,  as  against  all  the  world,  of  the  res  which  it 
condemns.    See  Judgment. 

Separate  Estate. — See  Husband  and  Wife;  Partner- 
ship. 

Separate  Examination. —See  Acknowledgment  of 
Deeds;  Fines;  Kecoveries. 

Separation. — See  Judicial  Separation;  Settlements  of 
Property. 


220  SEPARATISTS 

Separatists. — See  Nonconformist;  Affirmation. 

Sequester. — See  Inebriates  Acts. 

Sequestrari  facias. — See  Execution. 

Sequestration. — See  Execution,  Vol.  V.,  at  pp.  494  et  seq. 
At  one  time  on  a  benefice  becoming  void,  the  rural  dean  took  charge  of 
the  vacant  church,  etc.,  but  in  process  of  time  the  canon  lawyers 
deprived  him  of  this,  and  the  chancellors  of  bishops  or  their  archdeacons 
took  possession,  and  by  forms  of  sequestration  assigned  the  charge  over 
to  the  lay  guardians  of  the  church  (Gibs.  Cod.  p.  749).  The  present 
procedure  is  for  the  churchwardens  to  take  out  sequestration  under  the 
seal  of  the  bishop  and  then  to  manage  the  profits  and  expenses  for  the 
next  incumbent.  It  is  their  duty,  therefore,  to  see  to  the  cultivation  of 
the  glebe,  and  reaping  of  crops,  collection  of  tithes,  rent-charges,  etc. 
They  have  to  account  for  their  acts  to  the  successor,  and  if  the  latter  is 
dissatisfied  with  their  account  he  may  summon  them  before  the  ordinary. 
They  can,  however,  deduct  reasonable  expenses  (28  Hen.  viii.  (1536) 
c.  11,  s.  3).  See  Churchwarden;  Incumbent  {Noble  v.  Recust,  [1904] 
P.  34). 

Serial. — See  Copyright. 

Serjeant-at-Arms. — An  officer  with  this  title  is  one  of 
the  chief  officers  both  of  the  House  of  Lords  and  of  the  House  of 
Commons,  and  with  very  similar  functions,  though  some  of  those 
performed  by  the  Serjeant  of  the  House  of  Commons  are  performed  by 
Black  Rod  {q.v.)  in  the  House  of  Lords.  The  Serjeant  of  the  House  of 
Lords  is  appointed  by  the  Crown,  and  he  attends  the  Lord  Chancellor 
with  the  mace,  executing  the  orders  of  the  House,  whether  verbal  or  by 
warrant,  against  persons  committed  for  contempt.  But  in  case  of  the 
committal  of  a  member,  the  order  goes  to  Black  Rod.  The  Serjeant 
is  the  officer  of  the  Lord  Chancellor  rather  than  of  the  House.  The 
Serjeant  of  the  House  of  Commons  is  appointed  by  patent  under  the 
Great  Seal  "  to  attend  upon  Her  Majesty's  person  when  there  is  no 
Parliament;  and  at  the  time  of  every  Parliament,  to  attend  upon  the 
Speaker  of  the  House  of  Commons ; "  but  after  his  appointment  he  is 
the  servant  of  the  House,  and  may  be  removed  for  misconduct. 

He  attends  the  Speaker  with  the  mace  on  entering  and  leaving  the 
House,  or  going  to  the  House  of  Lords,  or  attending  the  Sovereign  with 
addresses.  Order  in  the  House  is  generally  in  his  province.  He  takes 
strangers  into  custody  who  have  obtained  irregular  admittance,  or  who 
misconduct  themselves ;  causes  the  removal  of  persons  directed  to 
withdraw ;  causes  the  doors  to  be  locked  on  divisions ;  introduces,  with 
the  mace,  peers  or  judges  attending  within  the  bar,  and  messengers 
from  the  Lords ;  attends  the  Sheriffs  of  London  at  the  bar  on  presenting 
petitions ;  brings  to  the  bar  prisoners  to  be  reprimanded  by  the  Speaker, 
or  persons  in  custody  to  be  examined  as  witnesses.  There  is  a  Deputy- 
Serjeant,  who  assists  him  in  the  performance  of  these  duties.  The 
Speaker's  warrants  are  addressed  to  him,  and  he  takes  into  custody  the 
persons  named  therein,  and,  as  ordered,  keeps  them  either  in  his  own 
custody,  or  removes  them  to  the  Tower,  or  other  prison.  He  also  may 
take  into  custody  persons   ordered  verbally  to   be   so  taken  by  the 


SERJEANT-AT-LAW  221 

Speaker,  when  the  latter  is  accompanied  by  the  mace.  As  committees 
cannot  sit  during  the  prayers  of  the  House,  it  is  the  Serjeant's  duty  to 
give  notice  to  them.  He  appoints,  and  has  charge  of  the  officers  in  his 
department,  and  has  charge  of  the  committee-rooms  and  other  buildings 
whilst  Parliament  is  sitting.  The  privileges  of  Parliament,  and  especi- 
ally the  right  to  commit  to  prison  for  contempt  of  those  privileges,  have 
in  many  instances  been  determined  by  actions  against  the  Serjeant-at- 
Arms.  See  Burdett  v.  Ahhott,  1811,  14  East,  1;  12  E.  R  450;  and 
Burdett  v.  Colman,  14  East,  163,  where  the  Serjeant,  acting  under  the 
Speaker's  warrant,  was  held  justified  in  breaking  open  doors,  outer  or 
inner,  of  a  dwelling-house,  for  the  purpose  of  arresting  the  person 
mentioned  therein,  and  of  employing  the  civil  and  military  forces  under 
the  direction  of  a  civil  magistrate.  In  Bradlaugh  v.  Gossett,  1884, 
12  Q.  B.  D.,  p.  271,  it  was  held  that  an  action  will  not  lie  against  the 
Serjeant-at-Arms  of  the  House  of  Commons  excluding  a  member  from 
the  House  in  obedience  to  a  resolution  of  the  House  directing  him  to 
do  so,  nor  will  the  Court  grant  an  injunction  to  restrain  him  from  using 
necessary  force  to  carry  out  the  order  of  the  House. 

See  House  of  Commons  ;  House  of  Lords. 

[^Authorities. — May,  Parliamentary  Practice,  11th  ed. ;  Chaster, 
Powers  of  Executive  Officers,  5th  ed.] 

Serjeant-at-La^V. — The  title  or  dignity  of  serjeant-at-law 
(serviens  ad  legem)  dates  from  a  very  remote  period,  and  till  comparatively 
recently  it  marked  the  highest  rank  at  the  bar.  By  old  writers  serjeants- 
at-law  were  distinguished  from  the  utter  barristers  or  apprentices 
{apprenticii  ad  legem),  who  did  not  become  qualified  for  advancement 
to  the  state  and  degree  of  serjeant  until  they  had  been  sixteen  years  at 
the  bar.  In  later  times  no  time  was  prescribed  before  a  barrister  could 
be  admitted  to  the  higher  degree.  The  title  was  conferred  by  writ 
under  the  Great  Seal,  and  in  former  times  the  call  to  the  coif  (see  Coif), 
as  the  creation  of  Serjeants  was  sometimes  called,  was  marked  by  various 
ceremonies.  The  newly  created  serjeant  severed  his  connection  with  his 
Inn  of  Court  and  joined  the  Inn  belonging  to  his  own  order ;  he  pre- 
sented rings,  each  inscribed  with  a  motto,  to  the  Sovereign,  the  Lord 
Chancellor,  and  to  certain  other  dignitaries ;  and  at  one  time  the  actual 
ceremony  of  putting  on  the  coif  is  said  to  have  been  a  very  solemn 
affair.  The  change  from  the  degree  of  utter  barrister  to  that  of  serjeant 
was  further  marked  by  a  difference  in  costume.  Important  privileges 
belonged  to  the  order.  Till  the  Judicature  Act,  1873,  came  into  opera- 
tion, which  rendered  it  unnecessary  that  a  person  should  be  admitted  to 
the  degree  of  serjeant  before  being  appointed  a  judge  of  the  Supreme 
Court,  the  judges  of  the  Courts  of  King's  (or  Queen's)  Bench  and 
Common  Pleas  were  always  chosen  from  the  ranks  of  the  Serjeants,  and 
it  was  for  this  reason  that  the  latter  were  always  addressed  in  Court  by 
the  judges  as  "Brother."  For  many  centuries  also  they  had  the  exclusive 
right  of  audience  in  the  Court  of  Common  Pleas  during  term.  This 
latter  privilege  was  abolished  in  1846  by  the  Statute  9  &  10  Vict.  c.  54, 
the  attempt  to  effect  the  same  purpose  by  a  warrant  under  the  royal 
sign  manual  in  1834  having  been  decided  to  be  illegal  (see  In  the  matter 
of  the  Serjeants-at-Law,  1840,  6  Bing.  N.  C.  235).  Socially,  Serjeants 
took  precedence  next  after  knights  bachelors  and  before  King's  Counsel 
{q.v.),  but,  professionally.  King's  Counsel  took  precedence  of  Serjeants 
unless  the  latter  held  patents  of  precedence  (see  Precedence,  Patent 


222  SERJEANTS'  INN 

of).  Since  the  provision  of  the  Judicature  Act  already  referred  to,  the 
ancient  order  has  been  gradually  dying  out,  and  now  (1908)  only  one 
member  (Lord  Lindley)  survives.  Foreseeing  this  effect  of  the  Act,  the 
members  in  1877  sold  their  Inn  in  Chancery  Lane,  the  last  of  the 
numerous  hostels  they  once  possessed.  The  order  still  exists  in  Ireland, 
and  its  revival  in  England  has  been  advocated  on  more  than  one  occasion, 
but  it  is  not  now  likely  that  this  will  ever  be  done  (see  Pulling,  Order  of 
the  Coif ;  Manning,  Serjeants'  Case). 

Serjeants'  Inn. — See  Inns  of  Court. 

Sermon. — The  sermon  is  not  an  essential  portion  of  the  com- 
munion service,  nor  is  it  to  be  regarded  as  one  of  the  other  rites  of  the 
Church  within  the  meaning  of  the  Advertisements  of  Queen  Elizabeth 
and  Canon  58  of  1603-4 (/Tire  Eohimon,  Wright  v.  Tugwell,  [1897]  1  Ch. 
85,  96).  It  is  seldom,  however,  omitted  at  either  morning  or  evening 
service,  and  in  practice  its  omission  would  be  looked  upon  as  irregular 
{cp.  the  Pluralities  Act,  1837,  1  &  2  Vict.  c.  106,  s.  80,  and  Edward  vi.'s 
Injunctions,  Bodl.  Douce,  BB.  218,  No.  2).  See  the  Act  of  Uniformity 
Amendment  Act,  1872,  35  &  36  Vict.  c.  35,  s.  6,  as  to  sermons  or  lectures 
being  preached  without  the  usual  common  prayers  or  services,  etc. 

There  is  no  statutory  or  rubrical  direction  as  to  the  precise  spot  from 
which  the  sermon  is  to  be  delivered.     See  Pulpit. 

The  wearing  of  gowns  in  pulpit  when  preaching  is  merely  matter  of 
usage,  uncontrolled  by  positive  law  or  judicial  decision  {In  re  Bohinson, 
Wright  v.  Tugwell,  supra).  See  also  Incumbent  ;  and  Phillimore's  Eccl. 
Law,  2nd  ed.,  vol.  i.  ch.  xviii.  s.  5. 

Servant. — See  Master  and  Servant;  Seduction;  "Will. 

Servia. — Area. — The  Kingdom  of  Servia,  situated  in  the  Balkan 
Peninsula,  to  the  west  of  Rumania  {q.v.),  has  an  area  of  18,650  square 
miles,  or  rather  more  than  half  the  size  of  Ireland. 

Earlier  History. — The  Serbs  are  first  heard  of  in  ancient  Illyricum 
in  the  7th  century,  but  the  power  of  Servia  as  a  kingdom  only  dates 
from  the  12th  century,  when  it  was  constantly  at  war  with  the  Greeks. 
In  the  14th  century  Servia  had  become  a  powerful  Empire,  stretching 
from  the  Danube  to  the  Morea.  After  the  total  defeat  of  the  Servian 
Army  by  the  Turks  at  Kosovo  in  1389,  Servia  was  overrun  by  the 
Turks  and  lost  its  independence,  and  in  the  15  th  century  became  in  all 
respects  a  Turkish  province.  After  more  than  4  centuries  of  Turkish 
oppression  Servia  rebelled  in  1804  and  drove  out  the  Turks,  who,  how- 
ever, in  1813,  reconquered  the  country.  In  1842  the  Servians  became 
a  principality  recognised  by  Turkey.  In  1878  war  was  declared  against 
Turkey,  but  the  Servians  were  unsuccessful  and  only  saved  by  Russian 
intervention.  By  the  Treaty  of  Berlin,  July  1878  (Hertslet's  State 
Papers,  vol.  Ixix.  p.  749),  Servia  received  a  large  accession  of  territory  and 
its  independence  from  Turkey,  and  shortly  after  the  Servian  Prince  was 
proclaimed  King,  and  Servia  became  a  kingdom.  In  1885  war  was 
declared  against  Bulgaria  (see  article  Ottoman  Empire),  and  Servia  was 
badly  worsted ;  and  in  1903  there  was  a  rebellion,  and  the  King  and 
Queen  were  assassinated. 

Constitution. — The  present  Constitution  is  that  granted  on  January  3, 
1889  (Hertslet's  State  Papers,  vol.  Ixxxi.  p.  508),  which  was  displaced 


SERVICE  AND  DELIVERY 


223 


by  that  of  July  1869,  which  in  turn  was  abrogated  by  that  of  April 
1901.  The  Constitution  of  1889  was  restored  after  the  revolution  of 
1903.  The  executive  authority  is  vested  in  the  King  assisted  by  a 
Council  of  8  responsible  ministers.  The  legislative  authority  is  vested 
in  a  National  Assembly,  or  Narodna-Skupshtina,  composed  of  160 
deputies  elected  for  4  years,  who  are  paid  a  salary  and  receive  their 
travelling  expenses.  The  electorate  consists  of  all  Servians  of  21  years 
of  age  paying  a  certain  amount  in  taxes,  but  officers  and  soldiers  have 
no  vote.  Government  employees,  priests  and  communal  mayors  are 
ineligible  as  members  of  the  assembly.  The  National  Assembly  meets 
annually.  There  is  also  a  State  Council,  whose  members  are  partly 
appointed  by  the  King  and  partly  by  the  National  Assembly.  The 
Kingdom  is  divided  into  18  departments,  of  which  Belgrade  is  one,  and 
has  its  own  administration.  For  administrative  purposes  Servia  is 
divided  into  16  provinces  or  counties,  which  are  in  turn  subdivided 
into  communes. 

Courts  of  Justice. — There  are  23  Courts  of  First  Instance,  a  Court  of 
Appeal,  a  Court  of  Cassation,  and  a  tribunal  of  Commerce. 

Application  of  Imperial  Acts. — Anglo-Servian  relations  as  to  Patents 
{q.v.),  trade-marks  and  copyright  in  designs,  are  regulated  by  Order  in 
Council  of  June  26,  1884  (St.  R.  &  0.,  Rev.  1904,  vol.  ix.,  "  Patents, 
etc.,"  p.  5).  Extradition  {q.v.)  with  Servia  is  regulated  by  the  Treaty  of 
December  6,  1900  {ibid.,  vol.  v.,  "  Fugitive  Criminal,"  p.  228). 

[See  Statesman's  Year-Book ;  Encydopccdia  Britannica.] 

Service. — See  Master  and  Servant;  Military  Service; 
Navy;  etc. 


Service  and  Delivery. 

TABLE  OF  CONTENTS. 


I.  In  the  High  Codbt    .        .        ,  224 

1.  Acceptance  of  Service        .  224 

Effect  of        .         .         .224 

2.  Agreement  for    a   Special 

Mode  of  Service    .        .  225 

3.  Personal  Service         .        .  225 

(a)  Document    Req^uiring 

Personal  Service      .  226 

(b)  What  is  Personal  Ser- 

vice         .         .         .  225 

4.  Substituted  Service    .        .  226 

(a)  Within  the  Jurisdic- 

tion        .        .        .226 

(b)  Out  of  the   Jurisdic- 

tion .        .         .228 

(c)  In     Case    of    Vacant 

Possession        .        .  229 

5.  Service  on  Firms,  Companies, 

ETC 229 

(a)  Partnership  Firm       .  229 

(6)  Limited  Company       .  230 

(c)  Building  Society'        .  231 

(d)  Friendly  Society         .  231 


(e)  Joint-Stock  Company 

under    the    Act    of 

1845 

231 

(J)  Railway  Company 
(g)  Promoters  taking  Land 

231 

for  Public  Purposes . 

231 

(h)  Company  in  Liquida- 

tion 

231 

(t)  Foreign  Corporation  . 

231 

(;•)  Club   .... 

232 

(k)  Infants 

232 

(l)  Lunatics  and  Persons 

of  Unsound  Mind    . 

232 

6.  Delivery  and  Service   not 

Personal  .        .     232 

(a)  Explanatory       .         .     232 
(6)  Hours  for  Delivery  or 

Service  not  Personal    232 
(c)  What  Constitutes  such 

Delivery  and  Service     232 
{d)  Evidence  Required  of 

such     Delivery     or 

Service    .        .        .233 
(e)  Service  by   Filing  in 

Default    .         .        .     233 
(/)  Orders  not  Requiring 

Personal  Service      .     234 


224 


SEEVICE  AND  DELIVERY 


(g)  Service    of    Amended 

Writ         .  .234 


II.  In  the  Cousty  Court 


234 


In  What  Cases  the  Same  as 

IN  THE  High  Court       .     234 
(a)  Personal  Service  .     234 

(6)  Corporation,     Infant, 

Lunatic,  etc.     .        .     234 


2.  In   What  Cases  Ditfekent 
FROM  the  High  Codrt 


234 


(a)  Acceptance  of  Service     234 


(6)  Service  by  Leaving  a 
Copy  at  the  Party's 
House      .        .        .     234 

(c)  Defendant  on  Board  a 

Ship         .         .        .     234 

{d)  Defendant  in  Barracks    234 

(e)  Defendant  in  Prison   .     235 

(/)  Defendant  Working  in 

a  Mine  or  Works     .     235 

{g)  Defendant      Shutting 

up  Dwelling  or  Office     235 

(h)  De^ndant     Resisting 

Ser\'ice     .        .        .235 

(i)  On  a  Railway  Company    235 


Preliminary  Note. — No  writ  or  process,  warrant  (except  warrant  of 
arrest  in  Admiralty  actions),  order,  judgment,  or  decree  (except  criminal 
process)  can  be  served  or  executed  on  a  Sunday  (see  Supreme  Court 
Rules,  Order  67,  r.  12  ;  Admiralty  Rules,  1859,  r.  167 ;  and  the  Sunday 
Observance  Act,  1677,  29  Car.  ii.  c.  7).  In  Admiralty,  moreover,  no 
instrument  except  a  warrant  of  arrest  may  be  served  on  Good  Friday 
or  Christmas  Day  (Supreme  Court  Rules,  Order  67,  r.  12 ;  Admiralty 
Rules,  1859,  r.  167  ;  County  Court  Rules,  1903  and  1904,  Order  54, 
r.  19). 

Subject  to  the  above  provisions,  a  writ  of  summons  may  be  served 
on  any  day  and  at  any  time  of  the  day  or  night  {Upton  v.  Mackenzie, 
1822,  1  Dow.  &  Ry.  172 ;  Priddee  v.  Cooper,  1822,  1  Bing.  66 ;  25  R.  R. 
601),  whether  specially  indorsed  or  not  {Murray  v.  Stephenson,  1887, 
19  Q.  B.  D.  60). 

I.  In  the  High  Court. 

'  1.  Acceptance  of  Service. — Effect  of. — Service  of  a  writ  of  summons 
or  other  document  commencing  proceedings  is  often  dispensed  with  by 
acceptance  of  service  and  undertaking  to  appear.  The  following  memo- 
randa will  be  found  useful  where  this  course  is  adopted : — 

It  must  be  in  writing  and  signed  by  defendant's  solicitor  (Order  9, 
r.l). 

Form. — It  should  be  written  on  the  margin  of  the  writ  thus : — "  I 
accept  service  hereof  on  behalf  of  the  defendant  A.  B.,  and  undertake 
to  enter  an  appearance  for  him  in  due  course."  \^Date  and  signature  of 
solicitor.']     See  Chitty,  Forms,  74 ;  Daniell,  Ch.  Forms,  145. 

It  must  include  an  undertaking  to  appear,  otherwise  it  cannot  be 
enforced  against  the  solicitor  giving  it  {The  Anna  and  Bertha,  1891,  64 
L,  T.  332).  A  solicitor  not  entering  an  appearance  in  pursuance  of  his 
undertaking  so  to  do,  is  liable  to  an  attachment  (Order  12,  r.  18).  In 
the  Chancery  Division  the  application  is  made  by  motion  intituled  "  In 
the  matter  of  C.  D.,  a  Solicitor  of  this  Honourable  Court."  In  the 
King's  Bench  Division  it  is  usual  to  issue  first  a  Master's  summons  in 
the  action  calling  on  the  solicitor  to  show  cause  why  he  should  not 
enter  an  appearance  in  pursuance  of  his  undertaking  and  pay  the  costs 
of  the  application.  If  no  appearance  is  entered  an  application  is  made 
to  the  judge  in  chambers  by  ordinary  summons  in  the  action.  An 
undertaking  to  appear  is  a  contract  enforceable  by  attachment,  and 
may  be  so  enforced  at  any  time  within  six  years,  provided  the  action 
remains  effective  {In  re  Kerly,  [1901]  1  Ch.  467,  C.  A.). 

It  is  of  no  effect  as  against  the  defendant  until  after  appearance 


SERVICE  AND  DELIVERY  225 

has  been  entered  in  accordance  with  the  undertaking  (Order  9,  r.  1). 
It  cannot  therefore  be  enforced  by  judgment  in  default  against  the 
defendant,  for  that  can  only  be  given  on  proof  of  personal  or  substituted 
service  (Order  13,  r.  2). 

Where  the  original  writ  is  sent  to  a  solicitor  for  acceptance  of  service 
and  he  retains  it,  instead  of  returning  it  indorsed  with  his  undertaking, 
the  plaintiffs  best  course  is  to  issue  a  concurrent  writ,  and  serve  the 
defendant  with  it  personally  or  under  order  for  substituted  service. 

2.  Agreement  for  a  Special  Mode  of  Service. — The  parties  to  a 
contract  may  agree  on  a  special  mode  of  service.  "  On  principle  it  is 
clear  that  one  person  may  appoint  another,  for  consideration,  as  agent 
to  accept  service  ...  a  foreign  person  can  contract  to  have  a  domicil 
for  the  purpose  of  being  sued  within  the  jurisdiction."  See  judgment 
of  Field,  J.,  in  The  Tharsis  Sulphur,  etc.,  Co.  v.  La  SocUU  des  Mitaux,  1889, 
58  L.  J.  Q.  B.  435,  at  p.  438.  This  case  was  followed  in  Montgomery, 
Jones  &  Co.  v.  Liebmthal  &  Co.,  [1898]  1  Q.  B.  487,  C.  A.,  where  the 
defendants,  a  Scotch  firm,  agreed  that  any  writ  to  enforce  the  contract 
might  be  served  on  a  specified  agent  in  England,  and  such  service  was 
held  to  be  valid. 

But  both  these  contracts  were  for  service  within  the  jurisdiction  on  an 
appointed  agent  in  England,  and  where  the  contract  contained  a  clause 
that  in  case  of  disputes  the  party  in  Scotland  agreed  to  submit  to  the 
jurisdiction  of  the  English  Court,  it  was  held  that  this  did  not  empower 
the  English  Court  to  give  leave  to  serve  the  writ  in  Scotland,  as  the 
claim  was  not  within  Order  11,  r.  1.  "The  parties  had  no  power  to 
contract  that  the  Court  should  have  a  jurisdiction  which  is  forbidden 
by  the  rules"  (British  Wagon  Co.,  Ltd.  v.  Gray,  [1895]  1  Q.  B.  35,  C.  A). 

3.  Personal  Service. — (a)  Documents  requiring  Personal  Service. — 
Writ  of  summons  (Order  9,  r.  2);  notice  of  writ  on  foreigner  abroad 
(Order  11,  rr.  7,  8);  third  party  notice  (Order  16,  r.  48);  order  adding 
defendant  under  Order  17,  r.  4  (Order  17,  r.  5);  counterclaim  on  defen- 
dants added  (Order  21,  r.  12);  petition  not  in  an  action  (see  Daniell's 
Chancery  Practice,  1320) ;  originating  summons.  The  rules  do  not  directly 
provide  for  personal  service  of  an  originating  summons,  but  the  form  is 
the  same  in  this  respect  as  a  writ  of  summons  (App.  K,  No.  1a).  Every 
order  requiring  an  act  to  be  done  within  a  given  time  must  be  served 
personally  in  order  to  ground  proceedings  for  attachment  or  sequestra- 
tion. In  order  to  ground  execution,  an  order  directing  payment  of 
money  or  costs  within  a  certain  time  after  service  must  also  be  served 
personally  (see  Execution). 

(h)  What  is  Personal  Service. — A  copy  of  the  writ  or  other  docu- 
ment must  be  delivered  to,  and  left  with,  the  person,  and  the  original 
shown  to  him  if  he  asks  to  see  it  (Bdl  v.  Vincent,  1825,  7  Dow.  &  Ry. 
233 ;  Goggs  v.  Huntingtower,  1844, 12  Mee.  &  W.  503 ;  Dighy  v.  Thmnpson, 
1832, 1  Dowl.  P.  C.  363).  If  an  original  writ  is  not  shown  on  request 
at  the  time  of  service,  all  the  proceedings  will  be  set  aside  {Phillipson  v. 
Emanuel,  1887,  56  L.  T.  858).  If  the  party  to  be  served  refuses  to  take 
the  writ  or  other  document,  and  he  is  told  what  it  is,  and  it  is  thrown 
down  in  his  presence  and  left  there,  or  if  he  is  touched  with  it  and  it 
is  left  where  it  falls,  that  is  good  personal  service  {Thomson  v.  Pheney, 
1  Dowl.  P.  C.  p.  443).  A  concurrent  writ  is  equivalent  to  the  original 
writ,  and  a  duplicate  or  office  copy  of  a  Chancery  order  is  equal  to  the 
original  for  purposes  of  service,  except  that  in  the  case  of  service  of  an 
order  for  breach  of  which  the  person  served  is  liable  to  attachment  the 
vol.  xiil  15 


226  SERVICE  AND  DELIVERY 

production  of  an  office  copy  is  not  equivalent  to  the  production  of  the 
original  or  duplicate  (Order  67,  r.  1). 

The  writ  or  other  document  to  be  personally  served  must  not  be 
enclosed  in  an  envelope  or  wrapper  {Banque  Bttsse,  etc.  v.  Clark,  [1894] 
W.  N.  203). 

It  is  an  essential  part  of  the  service  of  a  writ  of  summons,  whether 
personal  or  substituted,  that  the  person  serving  should  indorse  on  the 
original  or  concurrent  writ  the  day  of  the  week  and  month  of  such  ser- 
vice. Such  indorsement  must  be  made  within  three  days  after  service, 
exclusive  of  the  day  of  service,  and  exclusive  of  Sunday,  Christmas  Day, 
and  Good  Friday  (Order  9,  r.  15 ;  Order  64,  rr.  2,  12),  but  inclusive  of 
the  last  day. 

Substituted  service  is  equivalent  to  personal  service. 

An  order  requiring  an  act  to  be  done  or  money  to  be  paid  within  a 
given  time  must  have  indorsed  on  the  copy  served  the  notice  prescribed 
by  Order  41,  r.  5,  namely :  "  If  you,  the  within-named  A.  B.,  neglect  to 
obey  this  judgment  [or  order]  within  the  time  therein  limited  you  will 
be  liable  to  process  of  execution  for  the  purpose  of  compelling  you  to 
obey  the  same  judgment  [or  order]."  Where  a  certain  time  is  limited 
for  doing  the  act  required,  without  specifying  a  time  after  service  for 
doing  the  act,  the  order  must  be  served  within  the  time  limited,  other- 
wise proceedings  to  enforce  it  will  be  set  aside  {Duffield  v.  Elwes,  1839, 
2  Beav.  268;  AdUns  v.  Bliss,  1858,  2  De  G.  &  J.  286);  though  a  sup- 
plemental order  extending  the  time  may  be  made,  which  does  not 
require  to  be  indorsed  with  the  above  notice  {Trehenu  v.  Dale,  1884, 
27  Ch.  D.  66). 

4.  Substituted  Service  (Order  10). — {a)  Within  the  Jurisdiction. — 
The  sole  ground  for  granting  an  order  for  substituted  service  is  that 
prompt  personal  service  cannot  be  effected  (Order  9,  r.  2 ;  Order  67, 
r.  6).     The  application  is  made  ex  parte. 

In  the  Chancery  Division  an  ex  parte  summons  is  issued,  which  must 
state  the  kind  of  substituted  service  asked  for.  An  affidavit  in  support 
must  be  filed,  and  office  copy  produced  at  the  hearing  of  the  summons. 
The  contents  of  affidavit  are  given  below.  The  order  must  be  drawn 
up  (Daniell's  Ch.  Forms,  147).  In  the  Chancery  Division  there  is  no 
specific  rule  as  to  what  efforts  to  serve  are  required,  but  the  practice 
on  the  King's  Bench  side,  which  is  fully  stated  below,  is  usually 
followed. 

In  the  King's  Bench  Division  the  application  is  made  on  an  affidavit 
of  facts,  and  the  order  must  be  drawn  up.  The  following  statement  of 
practice  on  the  King's  Bench  side  was  agreed  to  by  the  Masters  in 
May  1908 ;  and  the  contents  of  the  affidavit  on  which  the  application 
is  grounded  must  meet  those  requirements  according  to  the  circum- 
stances applying  to  the  case. 

(For  cases  on  substituted  service,  see  Annual  Practice,  Order  10,  notes.) 

Principles  usually  Followed  as  to  "  Substituted  "  or  other  Service. — 

I.  May  be  ordered  only  when  the  plaintiff  is  from  any  cause  unable 
to  effect  prompt  personal  service.  This  inability  is  the  essential  con- 
sideration. 

II.  Not  essential  to  show  that  the  defendant  at  the  time  of  the 
application  either  knows  of  the  writ  or  is  evading  service. 

If  the  writ  is  not  likely  to  reach  the  defendant  nor  to  come  to  his 
knowledge  if  service  is  substituted,  then  as  a  general  rule  substituted 
service  should  not  be  ordered.     It  is  not,  however,  essential  in  all  cases 


SERVICE  AND  DELIVERY  227 

to  show  that  it  will  do  so,  e.g.  in  actions  by  a  landlord  for  recovery  of 
land. 

III.  In  ordinary  cases  the  following  proceedings  are  deemed 
essential  both  in  the  C.  D.  and  K.  B.  D. 

(1)  Three  calls  must  be  made. 

(2)  And  at  the  defendant's  residence,  unless  {a)  the  subject-matter 
of  the  claim  is  one  that  relates  to  the  defendant's  business,  in  which  case 
calls  at  his  place  of  business  will  suffice,  or : 

Unless  {h)  it  is  shown  that  the  defendant's  residence  is  not  known 
to  the  plaintiff  or  his  solicitor  or  to  the  process-server,  and  cannot  after 
reasonable  inquiry  be  ascertained.  In  this  case  the  nature  of  the 
inquiries  made  should  be  specifically  described  in  the  affidavit  in  support 
of  the  application. 

(3)  The  calls  must  be  made  on  week  days  and  at  a  reasonable  hour 
of  the  day,  having  regard  to  the  place  where  they  are  made,  and  the 
likelihood  of  the  defendant  being  there  at  that  hour. 

(4)  Each  call  must  be  made  on  a  separate  day,  unless  the  process- 
server  is  expressly  invited  by  the  defendant  or  someone  having  or 
appearing  to  have  authority  from  him,  to  call  again  the  same  day  at 
a  specified  time. 

(5)  At  each  call  the  process-server  must  state  that  he  has  called  for 
the  purpose  of  serving  on  the  defendant  a  writ  at  the  suit  of  the  plaintiff. 
This,  however,  is  not  necessary  when  the  call  is  made  pursuant  to  an 
appointment  made  by  a  letter  which  states  the  object  for  which  the  call 
is  to  be  made. 

(6)  The  second  and  third  calls  must  be  made  by  appointment. 

(7)  Such  appointments  must  be  made  either  (a)  at  the  previous  call 
or  Q>)  by  letter  addressed  to  the  defendant  at  the  place  where  the  call  is 
intended  to  be  made,  or  at  some  place  where  it  is  shown  that  it  is  likely 
to  reach  him. 

In  ordinary  cases  it  is  desirable  that  one  at  least  of  the  appointments 
should  be  made  by  letter. 

When  any  appointment  is  made  by  letter,  the  affidavit  should  show 
that  the  defendant  has  received  the  letter  or  should  show  that  there  are 
reasons  for  thinking  that  he  has  received  it. 

If  the  letter  has  been  returned  through  the  Dead  Letter  Office  or 
otherwise,  the  affidavit  should  state  the  fact. 

If  the  defendant  or  anyone  has  answered  the  letter,  the  fact  should 
be  stated,  and  the  answer  exhibited. 

The  letter  of  appointment  should,  as  a  rule,  offer  the  defendant  an 
opportunity  of  making  a  different  appointment  should  the  one  made  not 
suit  him. 

(8)  Each  appointment  must  be  at  an  interval  of  time  that  will  give 
the  defendant  a  reasonable  opportunity  of  hearing  of  and  keeping  it. 
When  calls  are  made  at  the  defendant's  residence  and  it  is  shown  that 
the  defendant  is  not  away  from  home,  an  appointment  one  day  for  the 
next  at  a  time  when  the  defendant  is  likely  to  be  at  home  will  suffice, 
but  in  other  cases  at  least  one  of  the  appointments  should  leave  not  less 
than  one  clear  day  between  the  time  when  the  appointment  is  made 
and  the  time  appointed  for  the  call. 

(9)  At  each  call  the  process-server  should  inquire  as  to  the  present 
whereabouts  of  the  defendant,  and  where  he  is  likely  to  be  found,  and 
when  he  is  likely  to  return  to  the  place  at  which  the  call  is  made. 

(10)  At  the  second  and  third  calls  the  process-server  should  inquire 


228  SEKVICE  AND  DELIVEKY 

whether  the  defendant  has  received  the  copy  writ  and  whether  the 
defendant  has  received  notice  of  or  been  informed  of  the  appointment 
of  the  call. 

(11)  The  affidavit  in  support  of  the  application  should  state  the 
result  of  the  inquiries  above  indicated. 

(12)  At  the  first  or  second  call  the  process-server  must  leave  a  copy 
of  the  writ  for  the  defendant,  or  a  copy  should  be  enclosed  in  one  of  the 
letters  making  an  appointment. 

(13)  The  affidavit  in  support  of  the  application  should  show  whether 
the  defendant  is  within  the  jurisdiction  or  whether  he  is  believed  to 
be  so. 

(14)  In  the  case  of  a  defendant  who  is  shown  to  be  ordinarily  resident 
within  the  jurisdiction,  it  is  not  essential  to  show  affirmatively  that  he 
is  still  within  it,  as  this  will  be  assumed  in  the  absence  of  some  informa- 
tion to  the  contrary.  If  it  cannot  be  stated  affirmatively  that  the 
defendant  is  within  the  jurisdiction,  the  affidavit  should  at  least  show 
that  the  deponent  believes  him  to  be  within  it  or  that  there  is  no  reason 
to  believe  that  he  is  out  of  it.  Any  statement  made  at  any  of  the  calls 
tending  to  show  that  the  defendant  is  out  of  the  jurisdiction  must  be 
embodied  in  the  affidavit.  If  the  defendant  is  or  is  believed  to  be  out  of 
the  jurisdiction,  the  facts  as  to  when  he  went  out  of  it  and  whether  he 
then  knew  of  the  writ,  and  whether  he  went  abroad  to  avoid  service  of 
the  writ  should  be  stated. 

(15)  The  above  requirements  are  only  intended  as  guides  in  ordinary 
cases  and  are  not  intended  to  be  considered  essential  when  the  circum- 
stances are  exceptional. 

(16)  The  ordinary  mode  of  so-called  substituted  service  is  by  a  pre- 
paid post  letter  addressed  to  the  defendant  at  the  address  indicated  in 
the  affidavit.  Service  on  an  agent  or  solicitor  may  in  proper  cases  be 
ordered.  As  a  rule  service  by  advertisement  should  not  be  ordered 
unless  there  is  some  reason  for  believing  that  the  advertisement  may 
come  to  the  knowledge  of  the  defendant. 

Orders  for  substituted  service  are  not  common  in  the  Chancery 
Division,  but  are  extremely  so  in  the  King's  Bench  Division,  and  are 
there  usually  made  for  service  by  post.  In  all  these  cases  the  day  of 
posting  does  not  count  in  computing  the  time  for  appearance,  which 
commences  to  run  on  the  day  following  (Practice  Masters'  Kules  (17), 
Annual  Practice,  vol.  ii.,  part  ix. ;  Interpretation  Act,  1889,  52  &  53 
Vict.  c.  63,  s.  26). 

The  above  regulations  as  to  substituted  service  of  a  writ  of  summons 
apply  mutatis  mutandis  to  substituted  service  of  other  documents  within 
the  jurisdiction  (Order  67,  r.  6). 

(6)  Out  of  the  Jurisdiction. — If  it  can  be  clearly  proved  that  a  defen- 
dant has  absconded  or  gone  abroad  to  evade  service,  an  order  for  substi- 
tuted service  by  advertisement  or  otherwise  may  be  obtained.  In  other 
cases  the  power  to  make  an  order  for  substituted  service  out  of  the 
jurisdiction  depends  primarily  upon  whether  the  claim  is  one  on  which, 
according  to  the  terms  of  Order  11,  r.  1,  an  order  could  be  made  for 
service  of  the  writ,  or  notice  of  the  writ  out  of  the  jurisdiction.  Sub- 
stituted service  can  only  be  ordered  "  in  cases  where  the  writ  (or  notice 
of  the  writ)  can  be  served  as  a  matter  of  law,  but  where  it  cannot  from 
circumstances  be  served  personally  as  a  matter  of  fact "  {Field  v.  Bennett, 

1886,  56  L,  J.  Q.  B.  89).     The  same  was  decided  in  Hillyard  v.  Smyth,. 

1887,  36  W.  E.  7,  though  Field  v.  Bennett  does  not  appear  to  have  been 


SERVICE  AND  DELIVERY  229 

cited.  In  Fry  v.  Moore,  1889,  23  Q.  B.  D.  365,  the  dictum  above  quoted 
from  Field  v.  Bennett  was  approved  and  would  have  been  followed  but 
that  the  defendant  had  taken  out  a  summons  for  a  statement  of  claim, 
which  was  held  to  be  a  waiver  of  his  right  to  dispute  the  service.  Field 
V,  Bennett  was  also  followed  in  SociSte  Industrielle,  etc.  v.  Campanhia, 
1889,  W.  N.  32  ;  Wilding  v.  Bean,  [1891]  1  Q.  B.  100 ;  and  De  Bernales 
V.  Bennett,  [1894]  10  T.  L.  R.  419. 

On  the  other  hand,  substituted  service  of  a  writ  by  registered  letter 
was  ordered  against  a  German  subject  in  Germany  by  the  Divisional 
Court  in  Ditton  v.  Bornemann,  1886,  3  T.  L.  R.  3,  and  as  recently  as 
1905,  Swinfen-Eady,  J.,  upheld  an  order  for  substituted  service  by  post 
on  a  defendant  out  of  the  jurisdiction  by  letters  directed  to  addresses, 
some  within  and  some  out  of  the  jurisdiction  (  Western,  etc..  Building  Soc. 
V.  RucMedge,  [1905]  2  Ch.  472). 

The  circumstances  of  a  ceise  may  influence  the  Court  in  its  decision. 
A  defendant  had  notice  of  the  action  and  before  leaving  the  country 
was  shown  a  copy  of  the  writ  which  was  either  already  issued,  or  was 
about  to  be  issued.  He  left  the  jurisdiction,  though  there  was  no  proof 
that  he  did  so  to  evade  service.  The  judge  in  chambers  refused  an  order 
for  substituted  service,  but  the  Court  of  Appeal  directed  that  an  order 
for  substituted  service  on  persons  within  the  jurisdiction  should  be  made, 
allowing  time  for  the  defendant  to  be  informed  and  appear  {Jay  v. 
Budd,  [1898]  1  Q.  B.  12,  C.  A.). 

(c)  In  Case  of  Vacant  Possession. — In  an  action  for  recovery  of  land 
in  a  case  of  vacant  possession  the  writ  may  be  served  by  posting  a 
copy  of  the  writ  upon  the  door  or  other  conspicuous  part  of  the  pre- 
mises (Order  9,  r.  9),  but  such  service  must  either  be  made  pursuant 
to  an  order  first  obtained,  or  must  be  subsequently  made  effective  by 
an  order.  In  either  case  the  order  is  obtained  expaHe  on  proof  that  the 
premises  are  vacant,  and  service  so  effected  is  good  only  for  recovery 
of  the  premises,  and  not  for  any  added  claim  for  rent  or  mesne  profits. 

5.  Service  on  Firms,  Companies,  Infants,  etc. — (a)  Partnership 
Firm. — A  partnership  firm  sued  in  the  firm  name  may  be  served  either 
by  serving  the  writ  personally  on  one  or  more  of  the  partners,  or  on 
the  person  in  charge  of  the  business  at  the  principal  place  of  business 
within  the  jurisdiction  (Order  48a,  r.  3). 

Whether  a  partner  is  served  or  the  person  in  control  of  the  business, 
it  is  desirable  whenever  service  is  effected  at  the  place  of  business  that 
a  notice  in  the  following  words  should  be  served  with  the  writ : — 

"  Take  notice  that  you  are  served  as  the  person  in  control  of  the  busi- 
ness of  the  above-named  defendant  firm,  and  also  as  a  partner."  Service  in 
both  capacities  is  specifically  authorised  by  Order  48a,  r.  4 ;  and  if  this 
is  done,  the  service  is  good  on  the  firm,  whether  the  person  served  is  or 
is  not  a  partner.  Service  on  a  person  in  control  of  the  business  without 
a  notice  that  he  is  so  served,  is  no  service  on  the  firm  (Order  48a,  r.  4). 

A  foreign  firm  having  no  place  of  business  in  England  held  in  the 
firm  name  cannot  be  sued  in  the  firm  name.  The  partners  must  be  sued 
by  name  and  served  personally  {Western  National  Bank  of  New  York 
V.  Perez,  Triana  &  Co.,  [1891]  1  Q.  B.  304),  and  this  also  applies  to  a 
colonial  firm  {Indigo  Co.  v.  Ogilvy,  [1891]  2  Ch.  31). 

If,  however,  a  foreign  firm  has  a  place  of  business  in  England  held 
in  the  name  of  the  firm,  and  carried  on  by  a  partner  or  other  person 
in  the  pay  of  the  firm,  it  may  be  sued  as  a  firm  within  the  jurisdiction, 
and  served  as  above  indicated  (see   Worcester  Banking  Co.  v.  Firbank 

I 


230  SEEVICE  AND  DELIVERY 

6  Co.,  [1894]  1  Q.  B.  784,  C.  A.).  If  the  firm  has  no  place  of  busi- 
ness in  England,  held  in  the  firm  name,  it  does  not  carry  on  business 
within  the  jurisdiction  within  the  meaning  of  Order  48a,  r.  1,  even 
though  the  partners  come  to  this  country  regularly  and  employ  an 
agent  here  to  purchase  goods  to  be  sent  to  the  firm  abroad,  and 
the  writ  is  served  personally  on  such  partner  while  he  is  within  the 
jurisdiction  (Singleton  v.  Boberts  &  Co.,  1894,  70  L.  T.  687).  This  appHes 
only  to  a  case  where  a  foreign  firm  is  sued  in  the  firm's  name  as  .trading 
within  the  jurisdiction.  If  the  partners  are  sued  individually  in  their 
own  names,  service  on  one  of  them  while  within  the  jurisdiction  is  good 
on  him,  personally,  unless  it  can  be  shown  that  he  was  induced  by  fraud 
to  come  within  the  jurisdiction  for  the  purpose  of  effecting  service 
(Watkins  v.  Nm-th  American  Zand  Co.,  1904,  20  T.  L.  R  534,  H.  L.). 

An  individual  trading  within  the  jurisdiction  in  a  name  other  than 
his  own  name  can  be  served  in  the  same  manner  as  a  partnership  firm 
can  be  served,  i.e.  either  by  service  on  him  personally  or  at  the  principal 
place  of  business  on  the  person  having  at  the  time  of  service  the  control 
or  management  (Order  48a,  r.  11).  But  this  latter  mode  of  service 
does  not  apply  to  a  foreigner  domiciled  out  of  the  jurisdiction,  even 
though  he  has  an  office  in  England,  and  is  there  carrying  on  business 
as  a  firm  {St.  Gobain,  etc.,  Co.  v.  Hoyermanns  Agency,  [1893]  2  Q.  B. 
96,  C.  A.). 

A  limited  partnership  under  the  Limited  Partnerships  Act,  1907, 

7  Edw.  VII.  c.  24,  stands  on  the  same  footing  in  regard  to  service  as  an 
ordinary  partnership,  except  that  as  the  Act  provides  that  a  limited 
partner  "shall  not  take  part  in  the  management  of  the  partnership 
business,  and  shall  not  have  power  to  bind  the  firm,"  it  would  appear 
that  service  upon  him  would  not  be  service  on  the  firm. 

A  defendant  firm  may  contract  itself  out  of  these  rulings.  If  its 
place  of  business  is  out  of  the  jurisdiction,  and  it  agrees  to  accept  service 
at  some  place  within  the  jurisdiction,  a  writ  served  in  accordance  with 
the  agreement  is  well  served  {Montgomery  v.  Liebenthal  &  Co.,  [1898] 
1  Q.  B.  487).  But  it  cannot  extend  the  jurisdiction  of  the  Court  by 
its  agreement ;  therefore  an  agreement  that  the  English  Court  shall 
have  power  to  order  service  out  of  the  jurisdiction,  whether  the  case 
is  within  Order  11  or  not,  is  bad  {British  Wagon  Co.  v.  Gray,  [1896] 
1  Q.  B.  35).     See  2,  mpra. 

Subject  to  the  foregoing  remarks,  the  following  regulations  govern 
service  on  a  firm : — (i.)  A  partner  served  as  such  may  be  served  any- 
where within  the  jurisdiction.  If  no  notice  is  served  with  the  writ 
the  person  served  is  deemed  to  have  been  served  as  a  partner.  His 
name  must  be  ascertained,  as  its  insertion  in  the  affidavit  of  service  is 
obligatory,  (ii.)  A  person  served  as  manager  must  be  served  at  the 
principal  place  of  business  within  the  jurisdiction  (service  elsewhere 
is  void),  and  he  must  be  served  at  the  same  time  with  a  written 
notice  that  he  is  served  as  the  person  in  control  of  the  business.  His 
(or  her)  identity  is  of  no  subsequent  importance,  so  long  as  the  pro- 
cess server  finds  someone  on  the  premises  who  is  in  control  of  the 
business  at  the  time  of  service,  and  serves  him  with  the  writ  and  notice ; 
that  is  good  service  on  the  firm.  The  affidavit  of  service  merely  states 
that  the  "  person  in  control "  was  served,  without  naming  him  or  her 
(Order  48a,  rr.  3,  4). 

(b)  Limited  Company  (Order  9,  r.  8). — The  mode  of  service  is  pre- 
scribed by  the  Companies  Act,  1862,  25  &  26  Vict.  c.  89,  s.  62.     Service 


SERVICE  AND  DELIVERY  231 

may  be  effected  in  two  ways — (i.)  By  leaving  a  true  copy  of  the  writ 
or  other  document  at  the  registered  office.  It  is  not  necessary  to  prove 
with  whom  it  was  left,  though  it  should,  of  course,  be  handed  to  some 
person  authorised  to  receive  it ;  or  (ii.)  by  sending  it  through  the  post 
in  a  prepaid  letter,  addressed  to  the  company  at  their  registered  office 
(WTiite  V.  Land,  etc.,  Co.,  1883,  W.  N.  174). 

Service  on  the  secretary  is  not  good  service  on  the  company,  unless 
the  document  is  left  with  him  at  the  registered  office.  If,  however,  it 
can  be  sworn  in  the  affidavit  that  the  secretary  had  requested  that 
the  writ  should  be  served  on  him  at  some  other  place,  and  it  was 
there  served,  that  is  good  service  {Bx  parte  Railway  Steel,  etc.,  Co., 
1878,  8  Ch.  D.  p.  189). 

(c)  Building  Society  under  the  Act  of  1874.  —  No  direct  statutory 
provision  is  made  by  the  Act.  Service,  therefore,  must  be  in  accordance 
with  Order  9,  r.  8,  viz.,  personally  on  the  treasurer,  secretary,  or  other 
head  officer  (Order  9,  r.  8). 

A  building  society  not  incorporated  under  the  Act  of  1874  is  not 
a  corporate  body.  The  governing  body  must  be  sued  individually,  and 
served  personally. 

(d)  Friendly  Society.  —  The  mode  of  service  is  prescribed  by  the 
Friendly  Societies  Act,  1875,  38  &  39  Vict.  c.  60,  s.  21.  The  society 
should  be  sued  as  stated  in  the  section,  viz.,  "  A,  B.  and  C.  D.,  trustees 
of,"  etc.,  and  the  writ  may  be  served — (i.)  personally  on  the  officers 
sued ;  or  (ii.)  by  leaving  a  true  copy  at  the  registered  office,  or  any  place 
of  business  of  the  society  within  the  jurisdiction ;  or  (iii.)  if  the  office 
be  closed,  then  by  posting  a  copy  on  the  outer  door  of  such  office,  and 
sending  a  copy  through  the  post  by  registered  letter,  addressed  to  The 
Committee  of  Management  at  the  registered  office  of  the  society. 

(e)  Joint-Stock  Company  under  the  Act  of  1845. — The  mode  of  service 
is  prescribed  by  the  Companies  Clauses  Act,  1845,  8  &  9  Vict.  c.  16, 
8.  135 — (i.)  Leaving  a  copy  at  the  principal  office,  or  at  one  of  the 
principal  offices ;  or  (ii.)  giving  it  personally  to  the  secretary ;  or  (iii.) 
if  no  secretary,  then  giving  it  personally  to  a  director. 

(/)  Railway  Company. — Same  as  (c)  supra  ;  prescribed  by  the  same 
section. 

{g)  Promoters  of  Undertaking  Taking  Land  for  Public  Purposes. — 
Prescribed  by  the  Lands  Clauses  Consolidation  Act,  1845,  8  &  9  Vict, 
c.  18,  s.  134.  Same  as  in  (e)  supra;  except  that  as  regards  the  secretary 
the  copy,  writ,  etc.,  may  be  either  served  on  him  personally  or  sent  by 
post  addressed  to  him  ;  and  if  there  is  no  secretary,  then  to  the  solicitor 
of  the  promoters. 

{h)  Company  in  Liquidation. — Personally  on  the  official  liquidator. 

{i)  Foreign  Corporation. — An  order  for  service  on  a  foreign  corpora- 
tion out  of  the  jurisdiction  may  be  made  under  Order  11,  as  against  an 
individual  (see  Service  out  of  the  Jurisdiction).  Such  service  should 
be  effected  according  to  the  law  of  the  country  in  which  it  is  effected, 
and  any  special  requirements  of  the  foreign  law  in  that  respect  should 
be  stated  as  such  in  the  affidavit  of  service.  In  the  absence  of  such 
special  law  as  to  service,  the  requirements  of  Order  9,  r.  8,  of  the 
English  Rules  of  the  Supreme  Court  should  be  followed,  namely,  the 
writ  should  be  served  on  the  treasurer  or  secretary,  or  other  head  officer 
of  the  corporation,  and  though  the  rule  does  not  so  prescribe,  such 
service  should,  if  possible,  be  effected  at  the  office  of  the  company  or 
corporation. 


232  SEEVICE  AND  DELIVERY 

A  foreign  company  being  a  corporate  body  according  to  foreign  law 
but  having  established  a  "  residence  "  in  this  country  by  having  a  place 
of  business  in  England  may  be  served  as  an  English  corporation  under 
Order  9,  r.  8,  by  service  on  its  secretary,  or  other  head  officer,  at  such 
place  of  business  {Hoggin  v.  Comptoir  UEscompte  de  Paris,  1889, 
23  Q.  B.  D.  519).  If  they  "hire  an  office,  write  up  their  name,  and 
beyond  all  question  stamp  upon  their  place  of  business  here  that  here 
they  carry  on  their  business  "  they  may  be  served  here  (Lhoneiix  & 
Co.  V.  Hong  Kong,  etc..  Banking  Corp.,  1886,  33  Ch.  D.  446 ;  Compagnie 
G4nAral  Transatlaiitique  v.  Thomas  Law  &  Co.,  [1899]  A.  C.  431 ;  La 
Bourgogn^,  [1899]  P.  1,  C.  A.).  And  as  long  as  they  are  carrying  on 
in  this  country  a  substantial  part  of  their  business,  such  as  selling 
their  manufactures,  it  makes  no  difference  whether  their  factory  is 
abroad,  or  that  they  are  only  using  temporary  premises  here  for  their 
purpose,  even  for  a  period  of  a  few  days.  They  can  be  served  by 
service  on  the  manager  of  their  premises  {Bunlop  Pneumatic  Tyre  Co. 
v.  Actien  Gesdlschaft  filr  Motor,  etc.,  [1902]  1  K.  B.  342,  C.  A). 

{j)  Club. — A  members'  club  is  not  a  Urm  or  corporate  body,  and 
service  on  the  secretary  is  bad  (Grossman  v.  The  Granville  Club,  1884, 
28  Sol.  J.  513).  The  committee  should  be  sued  personally,  and  so 
served.  A  proprietory  club  may  be  treated  as  a  firm,  and  so  served 
{Firmin  v.  International  Club,  1889,  5  T.  L.  R.  694). 

Qc)  Infants. — Service  on  an  infant  is  effected  by  serving  his  father 
or  guardian,  or  if  none,  then  the  person  with  whom  the  infant  resides 
or  under  whose  care  he  is  (Order  9,  r.  5). 

{l)  Lunatics  and  Persons  of  Unsound  Mind.  —  A  lunatic  is  served 
by  serving  his  committee,  and  a  person  of  unsound  mind  not  so  found 
by  serving  the  person  with  whom  he  resides  or  under  whose  care  be  is 
(Order  9,  r.  5). 

6.  Delivery  and  Service  not  Personal.  —  (a)  Explanatory. — 
"  Delivery  of  pleadings,  etc.,  between  parties,"  and  "  service  of  docu- 
ments not  requiring  personal  service,"  are  merely  different  phrases 
expressing  the  same  thing.  Order  19,  r.  10,  says  "delivery"  between 
parties  is  to  be  effected  "in  the  manner  now  in  use"  (1875).  The 
manner  then  in  use  is  defined  in  rule  173  of  Begulce  Generates  of  Hilary 
Term  1853,  and  the  words  of  that  rule  are  repeated  in  Order  67,  r.  2, 
of  the  Rules  of  the  Supreme  Court,  in  the  expression  there  used  to 
define  "  service  not  personal."  The  rule  applies  to  writs,  notices, 
pleadings,  and  all  documents  not  requiring  personal  service. 

(6)  Hours  for  Delivery  or  Service  not  Personal. — All  documents  not 
requiring  personal  service  are  to  be  served  or  delivered  before  the  hour 
of  six  in  the  afternoon,  except  on  Saturdays,  when  they  are  to  be  served 
or  delivered  before  two  in  the  afternoon.  Service  after  six  on  any  day 
but  Saturday  counts  for  the  following  day,  and  after  two  on  Saturday 
counts  as  if  effected  on  the  following  Monday  (Order  64,  r.  11). 

(c)  What  Constitutes  Delivery  and  Service  not  Personal. — Delivery 
and  service  not  personal  consists — (i.)  Leaving  the  document  within 
the  prescribed  hours,  at  the  address  for  service  of  the  person  to  be 
served,  with  any  person  resident  at  or  belonging  to  such  place ;  or  by 
posting  the  document  in  a  prepaid  registered  envelope  addressed  to 
the  person  to  be  served  at  such  address  for  service.  The  time  at  which 
the  document  so  posted  would  be  delivered  in  ordinary  course  of  post 
shall  be  considered  as  the  time  of  service  thereof  (Order  67,  r.  2) ;  or 
(ii.)  if  solicitors  agree  in  writing  between  themselves  to  accept  service 


SERVICE  AND  DELIVERY  233 

of  proceedings  by  ordinary  post,  then  the  posting  of  a  prepaid  letter, 
addressed  to  the  solicitor  at  the  address  for  service,  containing  the 
document  to  be  served,  is  good  service  or  delivery.  In  this  case  also 
service  counts  as  if  effected  at  the  time  the  letter  would  be  delivered  in 
ordinary  course  of  post.  In  these  cases  the  service  is  usually  computed 
as  having  been  effected  on  the  day  following  the  day  of  posting.  As  to 
evidence  of  service  required,  see  next  note. 

{d)  Evidence  required  of  Delivery  or  Service  not  Personal.  —  In  the 
case  of  motion  for  judgment  in  default  of  defence,  under  Order  27, 
r.  11,  the  practice  in  the  Chancery  Division  differs  from  that  in  the 
King's  Bench  Division  on  this  point. 

(i.)  In  the  Chancery  Division  no  affidavit  of  delivery  of  statement 
of  claim  is  required ;  an  office  copy  of  the  statement  of  claim  filed  in 
default  being  sufticient. 

(ii.)  In  the  King's  Bench  Division  an  affidavit  is  required  in  every 
case,  proving  that  statement  of  claim  was  delivered,  by  leaving  a  copy 
thereof  at  the  address  for  service  with  a  person  resident  at  or  belonging 
to  such  place ;  or  proving  the  postage  of  a  registered  letter  containing 
the  document;  or  proving  that  the  defendant's  solicitor  agreed  in 
writing  to  accept  service  by  post,  and  that  a  prepaid  letter  was  posted 
to  him. 

In  the  case  of  King's  Bench  summonses,  the  above  requirements 
apply  to  all  cases  where  evidence  of  service  of  the  summons  is  required. 

In  the  case  of  judgment  in  default  of  defence,  under  Order  27, 
rr.  2-9,  the  filing  on  entering  judgment  of  the  statement  of  claim, 
marked  with  the  date  of  delivery,  is  accepted  as  sufficient  evidence 
of  delivery. 

(e)  Service  hy  Filing  in  Defaidt. — Where  a  defendant  makes  default 
of  appearance,  all  documents  not  requiring  personal  service  may,  on 
proof  of  service  and  non-appearance,  be  delivered  to  or  served  on  him 
by  filing  in  default  at  the  Central  Office,  or,  in  district  registry  actions, 
at  such  registry  (Order  19,  r.  10;  Order  67,  r.  4). 

Order  67,  r.  4,  applies  generally  to  all  actions  and  matters  where  the 
party  to  be  served  was  required  to  enter  an  appearance  within  a  limited 
time  and  failed  to  do  so,  and  can  be  bound  by  the  document  to  be 
served. 

It  does  not  apply  to  a  summons  for  directions,  for  a  defendant  who 
has  not  appeared  cannot  be  bound  by  it  {Re  Norman,  [1900]  W.  N.  159). 
Nor  to  a  summons  for  appointment  of  a  receiver  by  way  of  equitable 
execution  (Tilling  v.  Blythe,  [1899]  1  Q,  B.  557,  C.  A.).  Nor  to  cases 
where  the  service  is  prescribed  by  statute  other  than  the  Judicature 
Acts.  Thus  it  does  not  apply  to  service  of  a  charging  order  nisi  under 
1  &  2  Vict.  c.  110.  It  is  not  in  practice  applied  to  service  of  a  garnishee 
order  nisi  on  a  judgment  debtor  who  has  not  appeared  in  the  action, 
though  he  may  be  served  by  registered  post  under  Order  67,  r.  2. 

It  applies  to  an  amended  writ,  unless  personal  service  is  made  a 
condition  of  giving  judgment  by  default  {Jamaica  Rly.  Co.  v.  Colonial 
Bank,  [1905]  1  Ch.  677,  C.  A;  and  see.  Re  Hartley,  [1891]  2  Ch.  121). 
In  King's  Bench  Division  however,  personal  service  of  an  amended  writ 
is  usually  required,  and  invariably  so  where  judgment  in  default  of  appear- 
ance is  sought  after  amendment  of  the  writ.  It  applies  to  an  application 
for  attachment  against  a  defendant  in  default  who  has  been  served 
personally  with  the  order  disobeyed  {Re  Morris,  1890,  44  Ch.  D.  151 ; 
Re  Evans,  [1893]  1  Ch.  252).     But  wherever  personal  service  of  a  notice 


234  SEKVICE  AND  DELIVEEY 

of  application  for  attachment  can  be  effected,  it  ought  to  be  so  served 
(Be  Bassett,  [1894]  3  Ch.  179). 

(/)  Orders  not  requiring  Personal  Service. — All  orders  not  requiring 
personal  service  may  be  served  as  shown  in  (c)  and  (e),  supra.  This 
comprises  all  orders  except  the  following,  which  require  to  be  personally 
served : — (i.)  Orders  which  fix  a  time,  or  a  time  after  service,  within 
which  an  act  is  to  be  done  or  money  to  be  paid,  for  disobedience  to 
which  the  party  is  liable  to  execution  (the  only  exception  to  this  is  an 
order  for  payment  of  calls,  which,  under  rule  21  of  the  Eules  under 
the  Companies  Act,  1890,  may  be  served  by  post);  and  (ii.)  orders, 
under  Order  17,  r.  4,  adding  defendants,  upon  which  proceedings  may 
be  had  against  such  added  defendants  in  default  of  appearance. 

{g)  Service  of  Amended  Writ. — An  amended  writ  of  summons  does 
not  require  personal  service  on  a  defendant  who  has  appeared.  See 
Jamaica  Bly.  Co.  v.  Colonial  Bank,  and  Be  Hartley,  cited  supra,  note  {e). 
Service  hy  Filing  in  Default. 

II.  In  the  County  Court. 

1.  In  what  Cases  the  Same  as  in  the  High  Court. — (a)  Personal 
Service. — Wherever  personal  service  is  requisite  in  the  County  Court, 
the  regulations  as  to  personal  service  in  the  High  Court  must  be 
observed. 

(6)  Corporation,  Infant,  Lunatic,  etc. — In  the  case  of  a  corporation  or 
registered  company,  the  service  is  the  same  as  in  the  case  of  process 
issued  out  of  the  High  Court  (County  Court  Rules,  1903  and  1904, 
Order  7,  r.  26,  which  is  in  the  same  words  as  Order  9,  r.  8,  of  the 
Rules  of  the  Supreme  Court),  as  is  also  the  case  in  serving  an  infant 
(ibid..  Order  7,  r.  13),  lunatic  or  person  of  unsound  mind  not  so  found 
by  inquisition  (ibid..  Order  7,  r.  14) ;  also  a  partnership  firm  (ibid.. 
Order  7,  rr.  15a,  16b,  31),  and  in  an  action  for  recovery  of  land  where 
the  premises  are  vacant  (ibid..  Order  7,  r.  24). 

2.  In  what  Cases  Different  from  the  High  Court. — (a)  Acceptance 
of  Service. — In  the  case  of  a  document  not  requiring  personal  service,  if  a 
solicitor  represents  to  the  bailiff  that  he  is  authorised  to  accept  service 
on  behalf  of  the  defendant,  delivery  of  the  summons  to  the  solicitor  is 
good  service,  provided  he  indorses  his  acceptance  of  service  on  the 
document  (County  Court  Rules,  Order  7,  r.  12). 

(b)  Service  by  Leaving  a  Copy  at  the  Party's  HoiLse. — A  summons 
not  requiring  personal  service  may  be  either  delivered  to  the  party 
personally,  or  to  some  person  apparently  not  less  than  sixteen  years 
old  at  the  dwelling-house  or  place  of  business  of  the  party,  provided 
that  the  "  place  of  business  "  shall  not  be  deemed  to  be  such  within  the 
rule,  unless  the  party  is  the  master  or  one  of  the  masters  thereof  (ibid... 
Order  7,  r.  9a) ;  but  in  this  case  the  Court  may,  if  defendant  fails  to 
attend,  require  evidence  that  the  summons  reached  him,  (ibid..  Order  7, 
r.  10). 

(c)  Defendant  on  Board  a  Ship. — Service  other  than  personal  may  be 
effected  in  such  a  case  by  serving  the  person  on  board  who  is  at  the 
time  apparently  in  charge  of  the  ship  (ibid..  Order  7,  r.  18). 

(d)  Defendant  in  Barracks. — A  defendant  in  barracks  may  be 
served  with  a  summons  not  requiring  personal  service  by  serving  the 
adjutant,  or  any  officer  or  sergeant  of  the  troop  to  which  the  defendant 
belongs  (ibid..  Order  7,  r.  19), 


SERVICE  OUT  OF  THE  JUEISDICTION 


235 


(e)  Defendant  in  Prison. — Such  summons  may  be  served  on  the 
governor,  or  any  person  apparently  in  charge  (ibid.,  Order  7,  r.  20). 

(/)  Defendant  Working  in  a  Mine  or  Other  Works. — The  summons 
in  this  case  may  be  delivered  at  the  mine  or  works  to  the  engineman, 
banksman,  or  other  person  apparently  in  charge  (ibid.,  Order  7,  r.  21). 

(g)  Defendant  who  Keeps  his  Dwelling  or  Business  Place  Closed. — 
Where  the  defendant  keeps  his  house  or  office  closed  for  the  purpose  of 
preventing  service,  a  summons  not  requiring  personal  service  may  be 
served  by  the  bailiff'  by  affixing  it  to  the  door  (ibid.,  Order  7,  r.  23). 

(h)  Defendant  Resisting  Service. — In  case  the  bailiff  is  prevented  by 
violence  or  threats  from  serving  such  summons,  it  is  sufficient  service 
if  he  leave  such  summons  as  near  the  defendant  as  practicable  {ibid.. 
Order  7,  r.  25). 

{i)  On  a  Railway  Company. — Service  of  such  summons  may  be 
effiected  by  delivering  it  to  the  secretary,  stationmaster,  or  clerk  at  any 
station  or  office  of  the  company  within  the  district  in  which  the 
summons  is  to  be  served  {ibid.,  Order  7,  r.  27). 

Service,  Franchise.— See  Franchise  (Electoral). 
Service  out  of  the  Jurisdiction. 

TABLE  OF  CONTENTS. 


Growth  of  the  System    .         .         .  235 

Jurisciiction  :  Meaning  of  the  Term  236 
Service  of  Writs  under  R.  S.  C,  1883, 

Order  11 236 

Discretion  of  Court         .         .         .  236 
Cases    to   which    Order    11,    r,    1, 

Applies 237 

Where  Part  of  Claim  only  within 

Order  11,  r.  1      .                          .  241 
Where  Party  is  Resident  in  Scot- 
land or  Ireland   .        .        .        .241 

Application  for  Leave  to  Serve      .  242 


Notice  of  Writ        .  .242 

Concurrent  Writ  ....  243 
Substituted  Service  .  .  .  243 
Setting  aside  Service  of  Writ .  244 

Proceedings  other  than  Writs  of 

Summons 244 

Notice  of  Proceedings,  where  Service 

of  Process  not  Allowable  .  .  245 
Prolmte  Action       .        .         .        .246 

Divorce 246 

County  Courts        .  .        .246 

Concluding  Remarks      .        .        .    246 


Growth  of  the  System. — The  present  system  of  service  out  of  the 
jurisdiction  of  our  Courts,  as  settled  by  the  Rules  of  the  Supreme  Court, 
1883,  differs  materially  from  the  practice  which  was  in  force  before  the 
Judicature  Acts.  Nor,  under  the  old  system,  was  the  practice  uniform 
in  the  Courts  of  equity  and  law  respectively.  In  Chancery  power  was 
conferred  on  the  Court,  by  a  statute  passed  in  1832  (2  &  3  Will.  iv.  c.  33), 
to  direct  process  to  be  served  in  other  parts  of  the  United  Kingdom  and 
in  the  Isle  of  Man  in  suits  concerning  lands,  tenements,  or  hereditaments 
situate  in  England  or  Wales,  a  similar  power  as  to  a  service  of  process 
in  England,  Scotland,  or  the  Isle  of  Man,  in  respect  of  land  in  Ireland, 
being  granted  to  the  Irish  Courts.  By  a  later  Act  (4  &  5  Will.  iv.  c.  82) 
these  provisions  were  extended  to  suits  concerning  any  charge,  lien, 
judgment,  or  incumbrance  on  such  lands,  or  concerning  any  money 
vested  in  any  Government  or  other  public  stocks,  or  public  shares  in 
public  companies  or  concerns,  or  concerning  the  dividends  or  produce 
thereof.  In  1845  a  General  Order  was  passed  enabling  the  Court  to 
order  service  of  a  subpoena  to  appear  on  a  defendant  in  any  suit  where 
such  defendant  was  out  of  the  jurisdiction  of  the  Court.  The  Con- 
solidated General  Orders  of  1860  gave  a  similar  power  as  to  service 
of  a  bill  (see  Drummond  v.  Dinimmond,  1866,  L.  R.  2  Ch.  32,  overruling 
Cookney  v.  Anderson,  1862,  1  De  G.,  J.  &  S.  365 ;  46  E.  R.  146). 


236  SERVICE  OUT  OF  THE  JURISDICTION 

In  the  Courts  of  common  law  the  practice  was  regulated  by  the 
Common  Law  Procedure  Act,  1852,  15  &  16  Vict.  c.  76.  By  sec.  18  of 
that  statute,  in  the  case  of  a  British  subject  resident  out  of  the  juris- 
diction in  any  place  except  in  Scotland  or  Ireland,  the  plaintiff  could 
issue  without  leave  a  writ  in  the  prescribed  form,  and,  in  default  of 
appearance  by  the  defendant,  the  Court,  on  being  satisfied  that  there 
was  a  cause  of  action,  which  arose  within  the  jurisdiction,  or  in  respect 
of  a  breach  of  contract  made  within  the  jurisdiction,  could  order  pro- 
ceedings to  be  continued  against  such  defendant.  In  the  case  of  a 
defendant  out  of  the  jurisdiction,  not  being  a  British  subject,  a  writ 
might  be  issued  in  the  prescribed  form,  and  notice  of  such  writ  might 
be  served  on  the  defendant  (s.  19). 

The  Rules  under  the  Judicature  Acts  require  leave  to  be  obtained 
in  all  cases ;  for  Order  2,  r.  4,  provides  that  no  writ  of  summons  for 
service  out  of  the  jurisdiction,  or  of  which  notice  is  to  be  given  out 
of  the  jurisdiction,  shall  be  issued  without  the  leave  of  the  Court  or 
a  judge. 

Jurisdiction :  Meaning  of  the  Term. — For  the  purpose  of  construing 
the  term  "jurisdiction"  when  used  in  the  Rules  of  Court,  it  must  be 
taken  to  mean  the  territorial  jurisdiction  of  the  English  Courts.  Such 
jurisdiction  does  not  extend  to  the  high  seas,  nor  beyond  low  water- 
mark {B.  v.  Keyn,  1876,  2  Ex.  D.  63 ;  In  re  Smith,  1876,  1  P.  D.  300 ; 
The  Vivar,  1876,  2  P.  D.  29 ;  Harris  v.  Owners  of  The  Franconia.  1877, 
2  C.  P.  D.  173;  and  see  Bree  v.  Marescaux,  1881,  7  Q.  B.  D.  434). 
So  long  as  a  seaman  is  on  board  his  ship  he  is  considered  to  be 
within  the  jurisdiction  (Seagrove  v.  Parks,  [1891]  1  Q.  B.  551).  See 
also,  as  to  territorial  jurisdiction,  the  judgment  of  Lord  Selborne  in 
Sirdar  Gurdyal  Singh  v.  Rajah  of  Faridkote,  [1894]  A.  C.  pp.  683, 
684. 

Service  of  Writs  under  R.  S.  C,  1883,  Order  11. — The  practice  as  to 
service  out  of  the  jurisdiction  of  writs  of  summons  is  now  regulated 
by  Order  11  of  the  Rules  of  the  Supreme  Court,  1883,  which  differs  in 
some  respects  from  the  corresponding  order  of  the  Rules  of  1875. 

The  order,  as  has  been  held  in  several  cases,  constitutes  a  complete 
code  on  the  subject  of  service  out  of  the  jurisdiction.  Thus  in  In  re 
Eager,  Eager  v.  Johnstone,  1882,  22  Ch.  D.  86,  Jessel,  M.R.,  said  that 
the  new  rule  is  exhaustive,  and  the  old  practice  no  longer  applicable. 
In  the  leading  authority  of  In  re  Busfeld,  Whaley  v.  Biisfield,  1886, 
32  Ch.  D.  123,  it  was  stated  by  Cotton,  L.J.,  that  service  out  of  the 
jurisdiction  is  an  interference  with  the  ordinary  course  of  law,  for 
generally  Courts  exercise  jurisdiction  only  over  persons  who  are  within 
the  territorial  limits  of  their  jurisdiction.  If  an  Act  of  Parliament 
gives  them  jurisdiction  over  British  subjects  wherever  they  may  be, 
such  jurisdiction  is  valid,  but  apart  from  statute  a  Court  has  no  power 
to  exercise  jurisdiction  over  anyone  beyond  its  limits.  See  also,  and 
consider,  In  re  Anglo-African  Steamship  Co.,  1886,  32  Ch.  D.  348 ; 
In  re  Nathan,  Newman  &  Co.,  1887,  35  Ch.  D.  1 ;  In  re  Cliff,  Edwards 
V.  Brown,  [1895]  2  Ch.  21. 

Discretion  of  Court. — Even  though  a  case  be  brought  within  one  of 
the  sub-rules  of  the  Order  11,  r.  1,  it  is  clear  from  the  language  of  the 
rule  that  there  is  full  discretion  in  the  Court  to  grant  or  refuse  the 
order.     And  this  principle  has  been  insisted  on. 

"  Whether  service  out  of  the  jurisdiction  shall  be  allowed  or  not 
is  now  a  matter  for  the  discretion  of  the  judge,  in  the  same  way  as  it 


SEEVICE  OUT  OF  THE  JUEISDICTION  237 

was  under  the  old  practice.  There  is  no  absolute  right  strictissimi  juris, 
when  there  has  been  a  breach  of  contract  within  the  jurisdiction,  to  have 
service  out  of  the  jurisdiction.  When  the  matter  comes  before  the  judge 
at  chambers  it  is  for  him  to  consider  whether  there  is  real  danger  that 
the  plaintiff  may  be  unjustly  and  unnecessarily  bringing  the  defendant 
into  the  jurisdiction  of  the  English  Courts,  whether  the  application  is 
made  bond  Jide,  and  whether  the  action  appears  to  be  based  upon  any 
breach  of  the  contract  within  the  jurisdiction  "  (per  Bowen,  L. J.,  Thomas 
V.  Hamilton,  1886,  17  Q.  B.  D.  p.  597).  The  plaintiff  must  satisfy  the 
Court  that  he  has  a  probable  cause  of  action,  and  the  Court,  in  exer- 
cising its  discretion,  will  consider  the  facts  of  the  case  appearing  on  the 
affidavits,  so  far  as  may  be  necessary  for  that  purpose  {Soci4U  GinArale 
de  Paris  v.  Dreyfus,  1887,  37  Ch.  D.  215). 

"  It  is  not  that  you  are  entitled  to  have  leave  simply  because  you 
bring  the  case  within  one  or  other  of  the  eleven  rules  of  Order  11. 
You  cannot  get  the  leave  unless  you  do,  but  it  does  not  follow,  if  you 
do,  you  are  to  have  the  leave.  The  Court  has  a  discretion,  and  that 
discretion  must  be  exercised  judicially  and  upon  proper  grounds" 
(S.  C.  p.  225,  per  Lindley,  L.J.)  (See  also,  Ex  'parte  M'Phail,  1879, 
12  Ch.  D.  632;  Rohey  v.  Snaefdl  Mining  Co.,  1887,  20  Q.  B.  D.  152; 
De  Bemales  v.  New  York  Herald,  [1893]  2  Q.  B.  97?^. ;  Watson  &  Sons 
V.  Daily  Becm-d  (Glasyow),  Ltd.,  [1907]  1  K.  B.  853 ;  TJie  Hagen,  [1908] 
P.  189.)  The  Court  of  Appeal  will  not  readUy  interfere  with  the  exercise 
of  the  discretion  by  the  judge  in  the  Court  below  {Reynold  v.  Coleman, 
1887,  36  Ch.  D.  453 ;  Thomas  v.  Hamilton,  17  Q.  B.  D.,  p.  596). 

Cases  to  which  Order  11,  r.  1,  Applies. — Service  of  a  writ  of  summons, 
or  of  notice  of  a  writ  of  summons,  may  be  allowed  in  the  cases  specified 
in  the  seven  sub-rules  of  Order  11,  r.  1.  As  to  these,  it  has  been 
decided  that  they  are  to  be  read  disjunctively,  and  that  each  of  them 
is  complete  in  itself  and  independent  of  the  others  {Tasscll  v.  Hallen, 
[1892]  1  Q.  B.  321).  In  construing  these  provisions  disjunctively,  they 
ought  to  be  construed  strictly,  because  it  is  a  rule  giving  jurisdiction 
over  persons  who  would  not  otherwise  be  subject  to  the  Court  (S.  C.  per 
Lord  Coleridge,  C.J.). 

The  following  are  the  cases  dealt  with  by  the  sub-rules : — 

(a)  Where  the  whole  subject-matter  of  the  action  is  land  within  the 

jurisdiction  (with  or  without  rents  or  profits). 

Upon  this  sub-rule  Coleridge,  C.J.,  observed  that  "from  the  first 
sub-section  it  is  clear  that  whenever  the  subject-matter  of  the  action 
is  English  land,  the  trial — not  '  shall,'  but — '  may '  be  allowed  in  Eng- 
land, for  otherwise,  if  an  action  relating  to  the  status  of  English  land 
were  brought  in  Scotland,  the  judgment  of  the  Scotch  Court  could 
only  be  enforced  in  a  very  circuitous  way  "  (Agnew  v.  Usher,  1884,  14 
Q.  B.  D.  78). 

(b)  Where  any  act,  deed,  will,  contract,  obligation,  or  liability  affecting 

land  or  hereditaments  situate  within  the  jurisdiction  is  sought  to 
be  construed,  rectified,  set  aside,  or  enforced  in  the  action. 

The  rule  is  not  so  wide  as  the  corresponding  provision  in  the  Code 
of  1875,  which  extended  to  "stock  or  other  property  situate  within 
the  jurisdiction,"  whereas  the  present  rule  is  confined  to  "  land  or 
hereditaments." 


238  SEKVICE  OUT  OF  THE  JURISDICTION 

It  has  been  decided  under  this  sub-rule  that  an  action  to  obtain 
payment  of  rent  is  not  an  action  to  enforce  "  any  act,  deed,  or  will," 
and  Lord  Coleridge,  C.J.,  thought  that  it  was  not  an  action  to  enforce 
"  any  contract,  obligation,  or  liability  "  affecting  land  within  the  juris- 
diction. Accordingly,  it  was  held  that  the  Court  cannot  allow  service 
out  of  the  jurisdiction  of  a  writ,  in  an  action  for  non-payment  of  rent 
due  under  a  lease  of  land  in  England,  against  defendants  who  are 
domiciled  or  ordinarily  resident  in  Scotland  {Agnew  v.  Usher,  1884,  14 
Q.  B.  D.  78).  In  Kaye  v.  Sutherland,  1887,  20  Q.  B.  D.  147,  an  action 
to  recover  compensation  for  tenant-right,  according  to  the  custom  of 
the  country,  was  held  to  be  an  action  to  enforce  a  contract  or  obligation 
affecting  land,  and  service  out  of  the  jurisdiction  was  allowed.  In 
Tassell  v.  Rallen,  [1892]  1  Q.  B.  321,  an  action  for  damages  for  breach 
of  covenant  to  repair  was  held  to  be  within  the  sub-rule. 

Under  the  Eules  of  1875  a  statement  in  the  nature  of  slander  of 
title,  made  out  of  the  jurisdiction,  concerning  property  within  the  juris- 
diction, was  held  not  to  be  an  act  or  thing  affecting  such  property 
within  the  meaning  of  the  sub-rule  {Casey  v.  Arnott,  1876,  2  C.  P.  D. 
24). 

(c)  Where  any  relief  is  sought  against  any  person  domiciled  or  ordinarily 
resident  within  the  jurisdiction. 

Under  the  Rules  of  1875  leave  could  be  given  to  serve  a  writ  out 
of  the  jurisdiction  whenever  an  act  for  which  damages  were  sought  to 
be  recovered  was  done  within  the  jurisdiction ;  under  the  present  rule 
the  writ  in  an  action  of  tort  can  only  be  served  out  of  the  jurisdiction 
when  the  alleged  tort-feasor  is  (a)  domiciled,  or,  (b)  ordinarily  resident, 
within  the  jurisdiction  (Piggott,  p.  19). 

In  Radacl  v.  Bi-uce,  1892,  8  T.  L.  R.  409,  Cave,  J.,  held  that  where 
there  was  a  claim  which  could  be  maintained  in  the  Courts  of  this 
country  against  a  person  domiciled  or  ordinarily  resident  within  the 
jurisdiction,  a  judge  is  not  warranted  in  inquiring  into  the  cause  of 
action. 

A  company,  whose  registered  office  was  in  Scotland,  and  whose 
secretary  resided  there,  but  which  had  also  agencies  and  a  chief  office 
within  the  jurisdiction,  was  held  not  to  be  domiciled  or  ordinarily 
resident  within  the  jurisdiction  {Jones  v.  Scottish  Accident  Insurance  Co., 
1886,  17  Q.  B.  D.  421 ;  and  see  Watkins  v.  Scottish  Imperial  Insurance 
Co.,  1889,  23  Q.  B.  D.  285). 

{d)  Where  the  action  is  for  the  administration  of  the  personal  estate  of 
any  deceased  person,  who  at  the  time  of  his  death  was  domiciled 
within  the  jurisdiction,  or  for  the  execution  (as  to  property  situate 
within  the  jurisdiction)  of  the  trusts  of  any  written  instrument, 
which  ought  to  be  executed  according  to  the  laws  of  England. 

With  regard  to  the  latter  part  of  this  sub-rule,  the  words  "  as  to 
property  situate  within  the  jurisdiction  "  appear  to  be  intended  to  limit 
the  generality  of  the  rule,  and  to  impose  a  condition  which  must  be 
fulfiled  in  order  that  service  out  of  the  jurisdiction  may  properly  be 
allowed.  The  property  must  be  within  the  jurisdiction,  and  not  simply 
property  which  ought  to  be,  or,  if  the  trusts  were  duly  executed,  would 
be  so  situate.  There  must  be  property  within  the  jurisdiction  when 
leave  to  effect  service  is  given,  or  at  latest  when  an  application  to  set 
aside  service  of  the  writ  is  made  {Winter  v.  Winter,  [1894]  1  Ch.  421). 


SEKVICE  OUT  OF  THE  JUEISDICTION  239 

(e)  Where  the  action  is  founded  on  any  breach  or  alleged  breach  within 
the  jurisdiction  of  any  contract  wherever  made,  which,  according  to 
the  terms  thereof,  ought  to  be  performed  within  the  jurisdiction, 
unless  the  defendant  is  domiciled  or  ordinarily  resident  in  Scotland 
or  Ireland. 

This  sub-rule  has  given  rise  to  very  numerous  decisions,  which 
have  established  that,  to  bring  a  case  within  it,  there  must  be  a  distinct 
breach  of  contract.  Breach  of  duty  is  not  sufficient  (Cresswell  v.  Parker, 
1879,  11  Ch.  D.  601).  To  satisfy  the  requirements  of  the  sub-rule  it 
is  sufficient  to  show  that  there  is  a  contract,  some  part  of  which  is  to 
be  performed  within  the  jurisdiction,  and  a  breach  of  that  part  of  it 
within  the  jurisdiction  (Bein  v.  Stein,  [1892]  1  Q.  B.  753 ;  The  Eider, 
[1893]  P.  119).  The  part  of  the  contract,  the  breach  of  which  is 
complained  of,  must  be  performed  within  the  jurisdiction ;  it  must  be 
a  breach  of  something  which  not  only  has  to  be  done  in  England,  but 
can  be  done  nowhere  else  {Bell  v.  Antwerp,  London,  and  Brazil  Line, 
[1891]  1  Q.  B.  103;  Beynolds  v.  Coleman,  1887,  36  Ch.  D.  453).  "In 
order  to  justify  the  exercise  of  this  limited  and  exceptional  power  of 
issuing  process  to  be  served  in  a  foreign  country,  you  must  show  that 
the  performance  of  the  contract  must  (although  the  word  'ought'  is 
used  in  the  rule,  that  is  what  I  understand  it  to  mean)  under  the 
obligation  of  the  contract  itself  be  in  this  country  "  {'per  Halsbury,  L.C., 
Comber  v.  Leyland,  [1898]  A.  C.  p.  528).  See  that  case  discussed  in 
Charles  Duval  &  Co.,  Ltd.  v.  Cans,  [1904]  2  K.  B.  685,  in  which  Bey- 
nolds V.  Coleman,  1887,  36  Ch.  D.  453 ;  and  Bein  v.  Stein,  [1892]  1  Q.  B. 
753,  were  followed.  The  contract  must  be  looked  at,  and  the  facts 
which  existed  at  the  time  it  was  made,  in  order  to  determine  whether, 
having  regard  to  the  terms,  it  was  one  which  ought  to  have  been 
performed  within  the  jurisdiction  {Beynolds  v.  Coleman).  Where  the 
agreement  by  the  defendants  was  to  employ  the  plaintiffs  as  their 
exclusive  representatives  in  England  for  a  term  of  years,  and  the  agent 
of  the  defendants  by  letter  addressed  from  the  office  of  the  defendants' 
solicitors  in  London  declared  the  agreement  void,  it  was  held  that 
there  was  a  breach  by  the  defendants  within  the  jurisdiction  of  a 
contract  which,  according  to  the  terms  thereof,  ought  to  be  performed 
within  the  jurisdiction  {MutzenbecJier  v.  La  Aseguradora  Espaiiola, 
[1906]  1  K.  B.  254).  Where  the  defendant,  a  foreigner  resident  abroad, 
gave  notice  of  dismissal  to  the  plaintiff  by  letter  written  and  posted 
abroad  to  plaintiff  in  this  country,  it  was  held,  that  the  alleged  breach 
of  contract  having  taken  place  out  of  the  jurisdiction,  the  case  did  not 
fall  within  the  sub-rule  and  the  writ  was  set  aside  {Holland  v.  Bennett, 
[1902]  1  K.  B.  867).  With  regard  to  cases  in  which  the  breach  relied 
on  is  the  breach  of  an  obligation  to  pay  money,  the  question  for  con- 
sideration is.  Where  is  the  obligation  to  pay  ?  {The  Eider,  [1893] 
P.  119;  see  also  Bohey  v.  Snaefell  Mining  Co.,  1887,  20  Q.  B.  D. 
152;  Fry  v.  Baggio,  1891,  40  W.  R.  120 ;  Thompson  v.  Palmer,  [1893] 
2  Q.  B.  80). 

The  words  of  the  sub-rule  excepting  parties  resident  in  Scotland 
or  Ireland  from  its  operation,  have  the  effect  of  preventing  the  Court 
from  allowing  service  out  of  the  jurisdiction  of  a  writ  in  an  action  for 
breach  of  contract  on  a  Scotch  or  Irish  defendant  {Lenders  v.  Anderson, 
1883,  12  Q.  B.  D.  50).  It  was  held  in  British  Wagon  Co.  v.  Gray, 
[1896]  1  Q.  B.  35,  that  an  agreement  by  a  person  domiciled  or  ordinarily 


240  SERVICE  OUT  OF  THE  JURISDICTION 

resident  in  Scotland  or  Ireland,  that  a  writ  in  such  an  action  may  be 
served  on  him  in  Scotland  or  Ireland,  does  not  authorise  the  Court  to 
direct  service  there.  But  in  Montgomei'y  v.  Liebenthal  &  Co.,  [1898] 
1  Q.  B.  489,  it  was  held  that  an  agreement  by  a  person  domiciled  or 
ordinarily  resident  in  Scotland,  that  a  writ  for  breach  of  contract  may 
be  served  by  leaving  it  with  an  agent  in  England,  appointed  by  him 
to  accept  service,  is  valid,  and  service  upon  the  agent  is  good  service 
on  the  defendant;  and  see  Tharsis  Sulphur  Co.  v.  SociiU  iTidustrielle 
des  M6tmix,  1889,  58  L.  J.  Q.  B.  435. 

If  an  order  is  made  by  a  County  Court  judge  for  service  in  Scotland, 
a  prohibition  may  issue  {Channel  Coaling  Co.  v.  Boss,  [1907]  1  K.  B. 
145). 

(/)  Where  an  injunction  is  sought  as  to  anything  to  be  done  within  the 
jurisdiction,  or  any  nuisance  within  the  jurisdiction  is  sought  to  be 
prevented  or  removed,  whether  damages  are  or  are  not  sought  in 
respect  thereof. 

A  writ  of  summons  claiming  an  injunction  to  restrain  the  defendant 
from  publishing  libels  within  the  jurisdiction  on  the  plaintiff  was 
allowed  to  be  served  on  a  defendant  in  Ireland,  there  being  no  evidence 
that  the  defendant  never  came  to  England  (Tozier  v.  Hawkins,  1885, 
15  Q.  B.  D.  680).  For  cases  in  which  orders  have  been  made,  see  Boyle 
V.  Sacker,  1888,  39  Ch.  D.  249  ;  In  re  Burland's  Trade  Mark,  Burland 
V.  Broxburn  Oil  Co.,  1889,  41  Ch.  D.  542 ;  In  re  Be  Penny,  Be  Benny  v. 
Christie,  [1891]  2  Ch.  63  (order  subsequently  discharged  on  ground  of 
convenience);  Badische  Anilin  und  Soda  Falrik  v.  Johnson,  [1896] 
1  Ch.  25. 

The  claim  for  an  injunction  must  be  bond  fide,  and  not  made  merely 
to  bring  the  case  within  Order  11  {De  Bernales  v.  New  York  Herald, 
[1893]  2  Q.  B.  97?i.).  Even  though  the  plaintiff  may  have  a  bond-fide 
claim  for  an  injunction,  the  Court  is  bound  to  consider  all  the  circum- 
stances, and  to  exercise  its  discretion,  if  the  facts  show  that  the  claim 
cannot  reasonably  be  sustained  (  Watson  v.  Daily  Record  {Glasgow),  Ltd., 
[1907]  1  K.  B.  853). 

Leave  will  not  be  granted  where  an  injunction  in  England  can  only 
be  enforced  against  the  agents  of  the  defendant,  and  not  against  the 
defendant  himself  {Marshall  v.  Marshall,  1888,  38  Ch.  D.  330). 

{g)  Where  any  person  out  of  the  jurisdiction  is  a  necessary  or  proper 
party  to  an  action  properly  brought  against  some  other  person 
duly  served  within  the  jurisdiction. 

The  question  whether  a  person  out  of  the  jurisdiction  is  a  proper 
party  to  an  action  brought  against  a  person  who  has  been  served  within 
the  jurisdiction  must  depend  on  this :  Supposing  both  parties  had  been 
within  the  jurisdiction,  would  they  both  have  been  proper  parties  to  the 
action  ?  If  they  would,  and  only  one  of  them  is  in  this  country,  then 
the  rule  says  that  the  other  may  be  served,  just  as  if  he  had  been  within 
the  jurisdiction  {per  Lord  Esher,  M.R.,  Massey  v.  Haynes,  1888, 15  Q.  B.  D. 
p.  338).  When  the  liability  of  several  persons  depends  upon  one  investi- 
gation, they  are  all  proper  parties  to  the  same  action ;  and  if  one  is  a 
foreigner  residing  out  of  the  jurisdiction,  the  sub-rule  applies  (S.  C,  per 
Lindley,  L.J.).  The  following  cases  may  also  be  consulted: — Jenney 
v.  Mackintosh,  1886,  33  Ch.  D.  595  (a  party  abroad  interested  in  real 


SEEVICE  OUT  OF  THE  JUEISDICTION  241 

estate,  the  subject-matter  of  the  action,  allowed  to  be  served) ;  The  Eltmi, 
[1891]  P.  265  (cargo-owners  in  an  action  for  salvage  properly  brought 
against  shipowners  held  to  be  proper  parties) ;  Firth  v.  De  las  Rivas, 
1893,  42  W.  R  100  (a  partner  abroad  allowed  to  be  served  in  an  action 
brought  against  another  partner);  Croft  v.  King,  [1893]  1  Q.  B.  419 
(action  of  tort  properly  brought  against  a  person  within  the  jurisdiction) ; 
Williams  v.  Cartwright,  [1895]  1  Q.  B.  142  (action  for  deceit,  leave  given 
to  serve  a  joint  tort-feasor  resident  in  Scotland) ;  The  Ihic  UAumale, 
[1903]  P.  18 ;  The  Eagen,  [1908]  P.  189. 

The  defendant  served  within  the  jurisdiction  must  be  either  a  prin- 
cipal defendant  or,  at  all  events,  as  substantial  a  defendant  as  the  party 
proposed  to  be  served  out  of  the  jurisdiction  ( Yorkshire  Tannery  Co.  v. 
Uglinton  Chemical  Co.,  1884,  33  W.  R  162);  and  the  plaintiff  must  have 
an  apparent  cause  of  action  against  the  person  served  within  the  juris- 
diction, and  not  merely  have  joined  him  in  order  to  be  able  to  serve, 
within  the  jurisdiction,  a  person  who  is  out  of  the  jurisdiction  (  Witted 
V.  Galhraith,  [1893]  1  Q.  B.  577;  and  see  Indigo  Co.  v.  Ogilvy,  [1891] 
2  Ch.  31).  The  relief  claimed  against  the  party  out  of  the  jurisdiction 
must  be,  not  necessarily  the  same,  but  connected  with  that  claimed 
against  the  defendant  served  within  the  jurisdiction  {Collins  v.  North 
British  and  Mercantile  Insurance  Co.,  [1894]  3  Ch.  228). 

The  words  of  the  sub-rule  do  not  mean  any  person  who  may  col- 
laterally be  brought  into  the  action  for  certain  purposes  within  the 
Rules  of  the  Court,  but  mean  a  necessary  or  proper  party  against  whom 
the  order  is  sought  {Speller  v.  Bristol  Steam  Navigation  Co.,  1884, 
13  Q.  B.  D.  96,  where  it  was  held  that  the  sub-rule  does  not  apply  to 
the  case  of  a  third-party  notice  under  Order  16,  r.  48). 

At  the  time  of  the  application  it  must  be  shown  that  the  defendant 
within  the  jurisdiction  has  been  duly  served  ( Yorkshire  Tannery  Co.  v. 
Eglinton  Chemical  Co.,  1884,  33  W.  R.  162 ;  Collins  v.  North  British  and 
Mercantile  Inmrance  Co.,  [1894]  3  Ch.  228). 

Where  Part  of  Claim  only  within  Order  11,  r.  1. — Where  part  of  the 
claim  only  is  within  Order  11,  r.  1,  the  Court  can  order  that  the  plaintiff 
shall  not  be  entitled  to  relief  on  so  much  of  his  claim  as  is  outside  the  order 
{Manitoba  and  North-  West  Land  Corporation  v.  Allan,  [1893]  3  Ch,  432). 

Where  Party  is  Resident  in  Scotland  or  Ireland. — As  has  been  stated 
already,  the  provisions  of  sec.  18  of  the  Common  Law  Procedure  Act, 
1852,  did  not  extend  to  defendants  residing  in  Scotland  or  Ireland. 
And  Lenders  v.  Anderson,  1884,  12  Q.  B.  D.  50,  has  decided  that  under 
the  Rules  of  the  Supreme  Court  there  is  no  power  in  an  action  for 
breach  of  contract  to  allow  service  in  those  countries.  In  a  case  where 
an  application  is  made  for  leave  to  serve  a  writ  in  Scotland  or  Ireland, 
if  it  appears  to  the  Court  that  there  is  a  concurrent  remedy  in  Scotland 
or  Ireland,  as  the  case  may  be,  regard  must  be  had  to  the  comparative 
cost  and  convenience  of  proceeding  in  England  or  in  the  place  of  residence 
of  the  party  sought  to  be  served  (Order  11,  r.  2). 

"  It  is  not  the  cost  or  convenience  of  the  defendant  only  whom  it  is 
sought  to  serve  out  of  the  jurisdiction  which  is  referred  to  by  this  rule, 
but  the  general  cost  and  convenience  of  all  parties  to  the  action  "  {per 
Lopes,  L.J.,  Williams  v.  CartwHght,  [1895]  1  Q.  B.  p.  147).  If  the 
general  cost  and  convenience  of  all  parties  is  in  favour  of  bringing  the 
action  in  Scotland  or  Ireland  the  order  will  not  be  made,  or,  if  made, 
the  action  may  be  stayed  {Logan  v.  Bank  of  Scotland,  [1906]  1  K.  B. 
141). 

VOL.  XIII.  16 


242  SEKVICE  OUT  OF  THE  JURISDICTION 

On  this  rule  the  following  cases  may  be  consulted: — Cresswell  v. 
FarJcer,  1879,  11  Ch.  D.  601;  Ex  parte  M'Fhail,  1879,  12  Ch.  D.  632; 
Harris  v.  Fleming,  1879,  13  Ch.  D.  208;  Harvey  v.  Dougherty,  1887, 
56  L.  T.  322 ;  Marshall  v.  Marshall,  1888,  38  Ch.  D.  330 ;  In  re  Burland's 
Trade  Mark,  Burland  v.  Broxburn  Oil  Co.,  1889,  41  Ch.  D.  542 ;  In  re 
Be  Fenny,  Be  Fenny  v.  Christie,  [1891]  2  Ch.  63. 

Application  for  Leave  to  Serve. — Every  application  for  leave  to  serve 
a  writ  on  a  defendant  out  of  the  jurisdiction  must  be  supported  by  an 
affidavit  stating  that  the  plaintiff  has  a  good  cause  of  action,  and  showing 
in  what  place  or  country  the  defendant  is  or  may  probably  be  found,  and 
whether  he  is  a  British  subject  or  not  (Order  11,  r.  4). 

Usually  the  application  for  leave  to  issue  the  writ  (Order  2,  r.  4), 
and  for  leave  to  serve  under  the  above  rule,  are  combined.  Leave  to 
issue  the  writ  for  service  abroad  can  only  be  granted  by  the  judge 
in  person  (Order  54,  r.  12  {h);  Order  55,  r.  15;  and  as  to  District 
Registries,  Order  35,  r.  6.  See  Tottenham  v.  Barry,  1879,  12  Ch.  D. 
797). 

As  to  the  form  and  contents  of  the  affidavit,  see  Young  v.  Brassey, 
1875,  1  Ch.  D.  277;  Great  Aitstralian  Gold  Mining  Co.  v.  Martin,  1876, 
5  Ch.  D.  1.  It  may  be  made  by  the  plaintiff  or  his  solicitor,  or  by  any- 
body who  can  swear  to  the  facts  {Great  Australian  Mining  Co.  v.  Martin ; 
Chemische  Fahrik  Vormals  Sandoz  v.  Badische  Anilin  und  Soda  Fabrik, 
1904,  90  L.  T.  733). 

The  affidavit  must  state  fully  and  clearly  the  facts  of  the  case 
{Reynolds  v.  Colevian,  1887,  36  Ch.  D.  453 ;  Republic  of  Fern  v.  Dreyfus, 
1887,  55  L.  T.  802).  On  an  application  for  leave  to  serve  out  of  the 
jurisdiction,  the  Court  is  not  called  upon  to  try  the  action  or  express  a 
premature  opinion  on  its  merits.  But  the  application  should  be  sup- 
ported by  an  affidavit  stating  facts,  which,  if  proved,  would  be  a  sufficient 
foundation  for  the  alleged  cause  of  action,  and,  as  a  rule,  the  affidavit 
should  be  by  some  person  acquainted  with  the  facts,  or,  at  any  rate, 
should  specify  the  sources  or  persons  from  whom  the  deponent  derives 
his  information  {per  Lord  Davey,  Chemische  Fabrik  Vormals  Sandoz  v. 
Badische  Anilin  und  Soda  Fabrik,  1904,  90  L.  T.  733). 

Form  of  Order. — The  order  giving  leave  to  serve  must  limit  a  time 
after  service  within  which  the  defendant  is  to  enter  an  appearance 
(Order  11,  r.  5). 

A  table  has  been  settled  of  the  times  which  are  usually  allowed. 

Notice  of  Writ. — Where  the  defendant  is  neither  a  British  subject 
nor  in  the  British  dominions,  notice  of  the  writ,  and  not  the  writ  itself, 
must  be  served  (Order  11,  r.  6).  Such  notice  must  be  served  in  the 
manner  in  which  writs  of  summons  are  served  (Order  11,  r.  7).  As  to 
the  reason  for  service  of  notice  of  the  writ  on  a  foreigner  out  of  British 
dominions,  see  Beddington  v.  Beddington,  1876,  1  P.  D.  426 ;  Fowler  v. 
Barstoiv,  1881,  20  Ch.  D.  240. 

A  foreigner  in  British  dominions,  or  a  British  subject  in  foreign 
dominions,  may  be  served  with  a  writ  {Fowler  v.  Barstow,  1881,  20  Ch. 
D.  240). 

A  foreign  corporation  resident  out  of  the  jurisdiction  is  as  much 
within  the  rule  as  an  individual  {Scott  v.  Royal  Wax  Candle  Co.,  [1896] 
1  Q.  B.  404). 

Service  of  a  writ  instead  of  notice  of  it  upon  a  foreigner  not  in 
British  dominions  is  a  nullity,  and  cannot  be  cured  as  an  irregularity 
under  Order  70,  r.  2  {Hewitson  v.  Fabre,  1888,  21  Q.  B.  D.  6).  See 
further,  Notice  of  Writ. 


SEKVICE  OUT  OF  THE  JUKISDICTION  243 

In  cases  where  leave  is  given  to  serve  notice  of  a  writ  of  summons 
in  any  foreign  country  and  the  Lord  Chancellor  has  made  an  order 
applying  to  such  foreign  country  the  special  provisions  of  Order  11, 
r.  8,  the  procedure  prescribed  by  that  rule  is  adopted.  The  practice 
under  the  rule  is  shortly  as  follows: — 

The  notice  to  be  served  is  sealed  with  the  seal  of  the  Supreme  Court 
and  transmitted  to  the  Foreign  Office  by  the  President  of  the  Division, 
together  with  a  copy  translated  into  the  language  of  the  country  in  which 
service  is  to  be  effected,  with  a  request  for  the  further  transmission  of 
the  same  to  the  Government  of  the  country  in  which  leave  to  serve 
notice  of  the  writ  has  been  given. 

An  official  certificate,  or  declaration  upon  oath  or  otherwise,  trans- 
mitted through  the  diplomatic  channel  by  the  Government  or  Court  of 
a  foreign  country  to  which  the  rule  applies  to  the  English  Court,is  deemed 
sufficient  proof  of  service,  provided  that  it  certifies  or  declares  the  notice 
of  the  writ  to  have  been  personally  served,  or  to  have  been  duly  served 
upon  the  defendant  in  accordance  with  the  law  of  the  foreign  country. 

Where  an  official  certificate  or  declaration  certifies  or  declares  that 
efforts  to  serve  notice  of  the  writ  have  been  without  effect,  the  Court  or 
a  judge  may,  upon  the  ex  parte  application  of  the  plaintiff,  order  that 
the  plaintiff  be  at  liberty  to  bespeak  a  request  for  substituted  service  of 
the  notice,  which  request  may  be  bespoken  at  the  Writ  of  Summons 
Department,  and  the  notice  of  writ  and  copy  thereof  and  the  order  will 
be  sealed  and  transmitted  to  the  Foreign  Office  with  a  request  in 
prescribed  form. 

By  orders  of  the  Lord  Chancellor  the  rule  has  been  applied  to  the 
German  and  Kussian  Empires. 

Concurrent  Writ. — A  writ  for  service  within  the  jurisdiction  may  be 
issued  and  marked  as  a  concurrent  writ  with  one  for  service,  or  whereof 
notice  in  lieu  of  service  is  to  be  given,  out  of  the  jurisdiction ;  and  a 
writ  for  service  or  whereof  notice  in  lieu  of  service  is  to  be  given  out  of 
the  jurisdiction,  may  be  issued  and  marked  as  a  concurrent  writ  with 
one  for  service  within  the  jurisdiction  (Order  6,  r.  2).  See  Smalpage 
V.  Ton(/e,  1886,  17  Q.  B.  D.  644 ;  Firth  v.  De  las  Rivas,  1893,  42  W.  K. 
100. 

Suhstitided  Service. — It  has  been  established  by  the  cases  of  Field  v. 
Bennett,  1856,  56  L.  J.  Q.  B.  89 ;  Fry  v.  Moore,  1889,  23  Q.  B.  D.  395 ; 
Hillyard  v.  Smyth,  1887,  36  W.  K.  7 ;  Wilding  v.  Bean,  [1891]  1  Q.  B. 
100,  that  an  order  cannot  be  made  for  substituted  service  of  an  ordinary 
eight-day  writ  against  a  defendant  out  of  the  jurisdiction,  for  there  must 
be  a  possibility  in  matter  of  law  of  effecting  service  before  an  order  can 
be  made  for  service  by  substitution  in  consequence  of  difficulties  in 
effecting  prompt  personal  service  in  matter  of  fact  (see  per  Coleridge, 
C.J.,  in  Field  v.  Bennett,  supra).  Where,  however,  a  party  was  within 
the  jurisdiction  when  the  writ  was  issued,  but  went  abroad  before 
service  could  be  effected,  though  not  with  intent  to  evade  service, 
substituted  service  was  allowed  by  the  Court  of  Appeal  {Jay  v.  Budd, 
{1898]  1  Q.  B.  12,  diss.  Rigby,  L.J.).  And  in  ordering  substituted 
service  out  of  the  jurisdiction,  the  kind  of  service  ordered  is  not 
restricted  to  service  out  of  the  jurisdiction,  but  may  be  by  substitu- 
tion effected  within  the  jurisdiction  (  Western  Sitburban  Benefit  Building 
Society  v.  Rucklidge,  1905,  2  Ch.  472),  The  service  must  be  at  the  place 
indicated  in  the  order.  Therefore  where  the  order  was  for  substituted 
service  "  at  Yokohama  or  elsewhere  in  the  Empire  of  Japan,"  and  defen- 


244  SERVICE  OUT  OF  THE  JURISDICTION 

dant  was  served  at  Hong-Kong,  it  was  held  that  such  service  was  not 
the  service  contemplated  by  the  order,  and  was  a  service  out  of  the 
jurisdiction  for  which  leave  had  not  been  obtained,  and  that  it  must 
therefore  be  set  aside  (Bonnell  v.  Preston,  1908,  24  T.  L.  R.  756). 

Setting  aside  Service  of  Writ. — A  defendant,  before  appearing,  may, 
without  obtaining  an  order  to  enter  or  entering  a  conditional  appear- 
ance, move  to  set  aside  the  writ  or  notice  of  the  writ,  or  to  discharge 
the  order  authorising  service  (Order  12,  r.  30). 

It  follows  from  the  terms  of  Order  70,  r.  2,  that  such  an  application 
must  be  made  promptly,  and  before  the  party  applying  has  taken  any 
steps  (see  Reynolds  v.  Colema7i,  1887,  36  Ch.  D.  453,  where  delay  was 
held  fatal  to  an  application  to  set  aside  an  order  for  service  based  on 
the  objection  that  the  plaintiff  had  not  fairly  disclosed  the  facts  to  the 
Court).  Unconditional  appearance  to  the  writ  amounts  to  a  waiver,  and 
is  a  fresh  step  within  Order  70,  r.  2  {Tozier\.  Hawkins,  1885, 15  Q.  B.  D. 
650;  Western  National  Bank  of  New  York  v.  Perez,  [1891]  1  Q.  B.  304). 
But  in  Firth  v.  De  las  Bivas,  [1893]  1  Q.  B.  768,  following  Mayer  v. 
Claretie,  1890,  7  T.  L.  R,  40,  an  appearance  under  protest  was  held  not 
to  amount  to  a  waiver  of  irregularity.  On  the  application  a  defendant 
may  file  evidence  to  show  that  the  case  does  not  fall  within  Order  11, 
but  should  not  go  into  merits  unnecessarily  {Fowler  v.  Barstow,  1881, 
20  Ch.  D.  240). 

Proceedings  other  than  Writs  of  SummoTis. — Hitherto  the  question  of 
service  out  of  the  jurisdiction  of  a  writ  of  summons  or  notice  of  a  writ 
has  alone  been  considered.  It  follows  from  the  principles  laid  down  in 
In  re  Biisfield,  Whaley  v.  Busfeld,  1886,  32  Ch.  D.  123,  that  no  process 
can  be  served  abroad  by  which  anything  like  jurisdiction  over  the 
person  is  sought  to  be  exercised,  unless  provision  be  found  for  such 
service  in  some  statute  or  in  Rules  of  Court  made  by  properly  consti- 
tuted authority.  Order  11  is  in  terms  confined  to  the  service  of  a  writ 
or  notice  thereof.  Therefore  an  originating  summons  cannot  be  served 
outside  the  jurisdiction  of  the  Court  (In  re  Busfield,  supra);  nor  an 
order  for  calls  in  a  winding-up  (/w  re  Anglo-African  Steamship  Co.,  1886, 
32  Ch.  D.  348) ;  nor  a  summons  for  taxation  of  costs  (Fx  parte  Brandon,. 
In  re  Bowron,  1886,  54  L.  T.  128) ;  nor  the  common  order  to  tax  a 
solicitor's  bill  {In  re  Maugham,  1874,  22  W.  R.  748);  nor  a  summons 
for  the  appointment  of  a  receiver  by  way  of  equitable  execution  (  Weldon 
v.  Gounod,  1885,  15  Q.  B.  D.  622);  nor  a  summons  for  leave  to  enforce 
an  award  under  the  Arbitration  Act,  1889,  s.  12  {Basch  v.  Wulfert, 
[1904]  1  K.  B.  118). 

In  In  re  Cliff,  Fdwards  v.  Broum,  [1895]  2  Ch.  21,  it  was  decided 
that  the  Court  has  no  power  to  order  service  out  of  the  jurisdiction  of 
notice  of  an  order  made  on  an  originating  summons.  The  principle  of 
the  decision  is,  it  is  conceived,  equally  applicable  to  service  of  notice 
of  an  order  made  in  an  action  commenced  by  writ  (see  also  Notice  of 
Judgment). 

In  Potters  v.  Miller,  1883,  31  W.  R.  858,  an  application  for  leave  to 
serve  a  counterclaim  on  a  defendant  who  was  out  of  the  jurisdiction 
was  refused,  but  was  allowed  in  In  re  Luckie,  Nixon  v.  Luckie,  1880, 
W.  N.  12.  Both  cases  were  before  the  decision  in  In  re  Busfield.  It  is 
possible  that,  if  the  case  were  to  arise  again,  service  might  be  allowed 
on  the  principle  which  has  been  applied  to  the  ease  of  third-party 
notices  under  Order  16,  r.  48,  foreign  service  of  which  has  been  allowed, 
on  the  ground  that  such  a  notice  is  required  to  be  "  served  according  to 


SERVICE  OUT  OF  THE  JURISDICTION  245 

the  rules  relating  to  the  service  of  writs  of  summons  "  {Swansea  Shipping 
Co.  V.  Duncan,  1876,  1  Q.  B.  D.  644 ;  Duhout  tfe  Co.  v.  Macjpherson,  1889, 
23  Q.  B.  D.  340).  But  leave  can  only  be  obtained  to  serve  a  third- 
party  notice  on  a  third  party  out  of  the  jurisdiction  when  the  subject- 
matter  of  the  claim  against  such  third  party  falls  under  one  or  other  of 
the  specific  cases  mentioned  in  Order  11,  r.  1,  in  which  service  of  a  writ 
out  of  the  jurisdiction  will  be  allowed  {M'Cheane  v.  Gyles,  [1902]  1  Ch. 
287). 

The  case  of  foreign  service  of  petitions,  on  which  the  decisions  are 
conflicting,  has  already  been  considered  under  the  head  of  Petition, 
Vol.  XI.  p.  92,  of  the  present  work. 

Leave  has  been  given  to  serve  an  interpleader  summons  out  of  the 
jurisdiction  {Credits  Gerundeuse  v.  Van  Weede,  1884,  12  Q.  B.  D.  171 ; 
but,  as  to  that  case,  see  the  observations  of  Cotton,  L. J.,  in  In  re  Biosjield 
{ubi  supra),  at  p.  132). 

Notice  of  Proceedings  where  Service  of  Process  not  Allowable. — The 
Court  has  in  several  cases  decided  that,  although  leave  cannot  be  given 
to  serve  proceedings  intended  to  found  jurisdiction  against  parties  abroad 
in  cases  not  authorised  by  rule  or  statute,  notice  may  properly  be  given 
to  parties  out  of  the  jurisdiction  of  proceedings  which  may  affect  them. 
Thus  in  In  re  Nathan,  Newman  &  Co.,  service  of  notice  of  an  appoint- 
ment to  settle  a  list  of  contributories  in  a  winding-up  upon  an  alleged 
contributory  abroad  was  held  to  be  good.  So  in  the  case  of  In  re  Cliff, 
Edwards  v.  Brown,  [1895]  2  Ch.  21,  where,  as  has  already  been  stated, 
leave  to  serve  out  of  the  jurisdiction  notice  of  an  order  was  refused,  the 
Court  said  that  the  party  having  conduct  of  the  proceedings  might  give 
a  notice,  by  letter  or  otherwise,  to  the  person  resident  out  of  the  juris- 
diction, and  that  if,  after  notice,  such  person  does  not  choose  to  come  in, 
the  Court  will  act  upon  the  order,  and,  where  a  fund  in  Court  is  in  ques- 
tion, will  distribute  it,  in  his  absence.  In  In  re  La  Compagnie  GirUrale 
d'Uaux  Mindrales  et  de  Bains  de  Mer,  [1891]  3  Ch.  451,  notice  of  motion 
to  rectify  the  Register  of  Trade  Marks  by  striking  out  a  trade  mark 
registered  in  the  name  of  a  foreign  company  not  carrying  on  business 
within  the  jurisdiction  was  served  on  the  comptroller  and  the  company. 
Service  on  tlie  company  was  held  to  be  bad,  and  was  set  aside ;  and 
Stirling,  J.,  held  that  the  proper  course  was  to  proceed  on  the  notice 
given  to  the  comptroller,  after  sending  a  copy  to  the  company  with  an 
intimation  that  proceedings  which  might  affect  its  interests  were  pending. 
In  the  important  case  of  In  re  King  &  Go's  Trade  Mark,  [1892]  2  Ch. 
462,  the  same  question  as  was  decided  in  the  last-cited  case  again  came 
up  for  discussion.  The  registered  proprietor  of  a  trade  mark  registered 
in  England  was  a  British  subject  domiciled  in  Ireland,  and  therefore 
could  not  be  served  with  a  notice  of  motion  to  expunge  the  trade  mark. 
It  was  held  sufficient  to  send  him  a  copy  of  the  notice  of  motion,  with 
a  letter  informing  him  that  proceedings  had  been  commenced  which 
might  affect  his  interests.  The  motion  was  heard,  and  an  order  made, 
though  the  registered  proprietor  did  not  appear.  The  judgment  of 
Bowen,  L.J.,  should  be  consulted. 

"  I  arrive  without  the  faintest  hesitation  at  the  view  that  this  is  an 
instance  of  the  branch  of  cases  where  the  Court  has  jurisdiction  over 
the  person,  over  the  thing,  over  the  subject-matter,  and  though  I  agree 
that  notice  to  the  person  interested  is  essential  to  the  justice  of  the 
proceeding,  it  does  not  give  the  jurisdiction.  It  is  a  matter  which  must 
be  regulated  by   municipal  procedure,  there  being  no  statute  of  the 


246  SERVICE  OUT  OF  THE  JUEISDICTION 

realm.  If  the  legislature  had  chosen,  it  might  say  that  such  a  notice 
shall  be  in  this  way  or  that  way,  or  it  might  dispense  with  notice  alto- 
gether, or  it  might  provide  that  notice  by  advertisement  in  the  newspapers 
should  be  sufficient.  If  the  municipal  law  has  made  no  such  regulation, 
the  Court  will  deal  with  the  matter,  in  the  absence  of  any  provisions  in 
the  statute,  by  the  light  of  natural  justice.  Applying  that  light,  nobody 
can  doubt  that  the  person  who  is  interested  in  the  entry  in  the  register 
should  have  the  fullest  opportunity  of  being  heard,  and  if  he  wishes  to 
be  heard,  should  be  heard  before  the  Court.  He  must,  therefore,  have 
full  notice.  But  there  is  no  regulation  as  to  what  t's  are  to  be  crossed 
or  what  i's  are  to  be  dotted  in  the  notice  to  be  given.  It  must  be 
full  and  sufficient  to  protect  his  rights  in  every  respect,  and  nobody 
need  fear  that  an  English  Court  would  not  insist  on  the  notice  being  as 
ample  and  as  wide  as  the  protection  of  individual  rights  and  individual 
property  could  demand  (p.  486)." 

Probate  Actions. — By  Order  11,  r.  3,  it  is  expressly  provided  that 
service  of  a  writ  or  notice  of  a  writ  may  be  allowed  in  probate  actions. 

Divorce. — By  the  Divorce  and  Matrimonial  Causes  Act,  1857,  20  & 
21  Vict.  c.  85,  s.  42,  a  petition  for  a  decree  of  nullity  of  marriage,  for  a 
decree  of  judicial  separation,  or  for  a  decree  in  a  suit  of  jactitation  of 
marriage,  may  be  served  on  the  party  to  be  affected  thereby,  either  within 
or  without  His  Majesty's  dominions,  in  such  manner  as  the  Court  shall 
direct.  The  section  does  not  warrant  such  service  in  a  suit  for  restitution 
of  conjugal  rights  (Firebrace  v.  Firebrace,  1878,  4  P.  D.  63 ;  Chichester  v. 
Chichester,  1885,  10  P.  D.  186). 

County  Court. — As  to  service  out  of  the  jurisdiction  of  a  summons 
or  notice  of  a  summons  in  County  Court  proceedings,  see  County  Court 
Eules,  1903  and  1904,  Order  7,  rr.  41-49 ;  Annual  County  Courts  Practice, 
1908,  pp.  152,  153. 

Concluding  Remarks. — That  the  Court  regards  with  jealous  vigilance 
the  subject  of  service  out  of  the  jurisdiction,  and  resists  any  attempt  to 
induce  it  to  travel  by  a  hair's  breadth  beyond  the  limits  of  its  powers 
in  this  respect,  need  not  be  matter  for  surprise.  Such  service  is,  as  has 
been  said,  an  interference  with  the  ordinary  course  of  the  law,  and,  apart 
from  statute,  the  Court  has  no  power  to  give  leave.  It  is,  moreover, 
contrary  to  the  recognised  principle  of  English  law.  Actor  sequitur  forum 
rei.  It  must,  however,  be  admitted  that  greater  elasticity  might  with 
advantage  be  introduced  into  the  rules  of  practice  which  govern  this 
important  branch  of  the  procedure  of  our  Courts.  The  decision  in  In  re 
Busfield  (ubi  supra),  that  an  originating  summons  cannot  be  served  out 
of  the  jurisdiction,  has  been  a  fertile  source  of  inconvenience.  That  the 
case  itself  was  rightly  decided  is,  of  course,  beyond  question  ;  but  it  does- 
not  seem  reasonable  that  a  plaintiff,  who  is  in  a  position  to  obtain  an 
order  for  service  on  a  defendant  outside  the  jurisdiction,  should  find 
himself  unable  to  employ  against  such  defendant  the  same  form  of 
process  as  is  available  against  an  English  defendant,  and  should  be 
driven  to  a  more  circuitous  and  costly  method  of  obtaining  relief.  The 
reasonableness  of  the  objections  to  this  condition  of  things  was  recognised 
by  the  Rule  Committee,  when  in  ISTovember  1893  they  issued  a  set  of 
rules,  which  conferred  on  the  Court  power  to  allow  service  out  of  the 
jurisdiction  of  an  originating  summons,  or  notice  of  an  originating 
summons,  in  any  case  in  which  service  or  notice  of  a  writ  of  summons 
may  be  allowed.  The  rules  also  provided  that  leave  might  be  given  for 
service  out  of  the  jurisdiction  of  notices  of  motion  under  the  Patents, 


SESSIONS  247 

Designs,  and  Trade  Marks  Acts,  of  proceedings  in  the  winding-up  of 
companies,  and  of  a  notice  of  judgment  or  order.  In  order  to  bring  the 
procedure  by  originating  summons  into  line  with  that  by  writ,  certain 
alterations  in  procedure  were  prescribed,  which  entailed  some  additional 
cost  and  some  additional  delay.  The  sequel  is  but  too  well  known. 
Owing  to  opposition  proceeding  from  Scotland  and  Ireland,  the  rules 
relating  to  service  out  of  the  jurisdiction  were  withdrawn  after  being  in 
force  for  only  ten  days,  whilst  the  alterations  in  procedure  with  regard 
to  originating  summonses  were  retained.  Without  stopping  to  inquire 
whether  the  objections  of  the  Scotch  and  Irish  opponents  of  the  proposed 
new  code  were  reasonable  or  the  reverse,  it  is  not  easy  to  see  why  the 
repeal  of  the  new  rules  should  not  have  been  limited  in  such  a  way  as 
to  exclude  Scotland  and  Ireland  from  their  operation,  leaving  to  the 
suitors  the  benefit  of  a  much-needed  reform  in  regard  to  service  in  other 
parts  of  the  world. 

A  Committee  of  the  Incorporated  Law  Society  in  1898  reported  on 
the  subject  of  the  difference  in  the  procedure  of  the  English  and  Scotch 
Courts  with  regard  to  service  of  process  issuing  out  of  them  respectively. 
The  authors  of  the  report  were  of  opinion  that  the  Scotch  Courts  possess 
far  larger  powers  over  Englishmen  than  is  enjoyed  by  the  Courts  of  this 
country  over  Scotchmen;  and  they  suggested  that  the  jurisdiction 
exercised  by  the  Courts  of  the  two  countries  should  be  carefully  con- 
sidered, in  order  that  a  reasonable  equality  may  be  brought  about 
between  the  powers  respectively  possessed  by  Englishmen  having 
claims  on  persons  in  Scotland,  and  Scotchmen  having  claims  on  persons 
in  England. 

In  this  connection  the  remarkable  case  of  Wood  v.  Middleton,  [1897] 
1  Ch.  151,  deserves  consideration,  as  pointing  to  the  fact  that  the  High 
Court  in  this  country  does  not  possess  so  wide  a  power  of  allowing  service 
of  its  process  in  Scotland,  as  is  possessed  and  exercised  by  County  Courts. 
Wood  V.  Middleton  was  an  action  commenced  in  a  County  Court,  and 
subsequently  transferred,  for  lack  of  jurisdiction,  to  the  High  Court. 
The  summons  was,  by  leave  of  the  County  Court  Registrar,  served  on  the 
defendant  in  Scotland.  An  objection  in  respect  of  the  validity  of  the 
service  out  of  the  jurisdiction,  which  had  been  raised  but  not  decided  in 
the  County  Court,  was  argued  before  Stirling,  J.  He  held  that,  though, 
if  the  action  had  remained  in  the  County  Court,  the  order  for  service 
would  have  been  valid,  having  regard  to  Order  51,  r.  23,  of  the  County 
Court  Rules,  1889,  yet  the  defendant  ought  to  have  an  opportunity  of 
showing  in  the  High  Court  that  the  action  was  one  which  could  not  be 
prosecuted  there. 

[^Authorities. — The  Annual  Practice^  notes  to  Order  11;  Chitty's 
Archbold's  Practice,  14th  ed.,  1885,  pp.  244-249 ;  Clay  on  Writs  of 
Summons,  1894 ;  Daniell's  Chancery  Practice,  7th  ed.,  1901,  pp.  288-293  ; 
Day  on  The  Common  Law  Procedure  Acts,  4th  ed.,  1872  ;  Piggott  on 
Service  out  of  the  Jurisdiction,  1892;  Seton's  Judgments  aTui  Orders, 
6th  ed.,  1901,  pp.  13-19.] 

Sessions. — This  term  is  used  to  denote  the  sittings  of  a  Court 
of  justice,  usually  to  exercise  criminal  jurisdiction. 

It  is  applied  to  the  sittings  of  the  Central  Criminal  Court,  to  the 
general  or  Quarter  Sessions,  and  the  petty  and  the  special  sessions 
of  justices  of  the  peace,  and  to  the  licensing  or  Brewster  Sessions  (see 
Inferior  Courts  ;  Licensing  ;  Petty  Sessions  ;  Quarter  Sessions). 


248  SET-OFF 

Set-off. — The  right  of  set-off  is  the  right  of  a  defendant,  in  an 
action  for  a  fixed  and  ascertained  sum  of  money,  where  he  has  himself 
a  liquidated  demand  against  the  plaintiff,  to  set  one  demand  against  the 
other.  The  right  is  a  statutory  one,  and  must  be  distinguished  from 
the  common-law  right  of  a  defendant  to  reduce  or  defeat  the  claim  of 
the  plaintiff,  by  giving  evidence  of  some  matter  arising  in  the  course  of 
the  same  transaction  in  respect  of  which  the  claim  is  made.  If  an  agent 
is  sued  for  money  had  and  received  to  the  use  of  the  principal,  he  is 
only  liable  for  the  balance  remaining  due  after  deducting  all  just  allow- 
ances which,  as  such  agent,  he  is  entitled  to  retain  out  of  the  sum 
demanded ;  and  it  is  not  necessary  for  him  to  plead  such  allowances  as 
a  set-off  {Dale  v.  Sollett,  1767,  4  Burr.  2133).  So  a  buyer  of  goods,  in  an 
action  for  the  price,  may  set  up  a  breach  of  warranty  in  diminution  or 
extinction  of  the  price,  quite  apart  from  the  statutory  right  of  set-ofif 
{Street  v.  Blay,  1831,  2  Barn.  &  Adol.  456  ;  36  R.  R.  626  ;  see  now  the 
Sale  of  Goods  Act,  1893,  s.  53).  So,  in  an  action  by  the  assignee  of  a 
debt  due  under  a  building  contract,  it  was  held  that  the  defendant  was 
entitled  to  give  evidence  of  damages  sustained  by  him  in  consequence 
of  a  breach  of  such  contract  on  the  part  of  the  assignor,  and  to  have  the 
amount  of  such  damages  deducted  from  the  sum  demanded  by  the 
plaintifif  ( JTow?!^  v.  Kitchen,  1878,  3  Ex.  D.  127  ;  and  see  Government  of 
Newfoundland  v.  Newfoundland  Rly.  Co.,  1887,  13  App.  Cas.  199).  But 
there  was  no  right  at  common  law,  nor,  generally  speaking,  in  equity,  to 
set  off"  cross  demands  which  were  unconnected  with  each  other.  This 
right  was  first  given  by  the  Act  of  2  Geo.  ii.  c.  22,  s.  13,  which,  as 
amended  and  made  perpetual  by  the  Act  of  8  Geo.  ii.  c.  24,  provided 
that  where  there  were  mutual  debts  between  a  plaintiff  and  defendant, 
or  if  either  party  sued  or  was  sued  as  executor  or  administrator,  where 
there  were  mutual  debts  between  the  testator  or  intestate  and  either 
party,  one  debt  might  be  set  against  the  other,  notwithstanding  that 
such  debts  might  be  deemed  in  law  to  be  of  a  different  nature.  These 
provisions  were  repealed  by  the  Act  of  42  &  43  Vict.  c.  59,  but  the 
principle  of  set-off  established  by  them  was  saved  by  the  repealing  Act ; 
and  it  is  provided  by  the  rules  made  under  the  Judicature  Acts,  that 
a  defendant  may  set  off,  or  set  up  by  way  of  counterclaim  against  the 
claims  of  the  plaintiff,  any  right  or  claim,  whether  such  set-off  or 
counterclaim  sound  in  damages  or  not  (Order  19,  r.  3). 

The  right  to  counterclaim,  which  was  introduced  by  tlie  Judicature 
Act,  1873,  is  quite  distinct  from  the  right  of  set-off;  and  the  distinction 
is  of  considerable  practical  importance  (see  Pleading  ;  Assignments  of 
Choses  in  Action).  The  law  with  respect  to  the  right  of  set-off  has 
not  been  altered  by  the  Judicature  Acts ;  and  a  defendant  can  .there- 
fore only  avail  himself  of  a  set-off  where  he  could  formerly  have  done 
so  under  the  Acts  of  Geo.  ii.,  or  where  a  set-off  would  have  been  allowed 
in  equity  before  the  Judicature  Act  (see  Stumore  v.  Campbell,  [1892] 
1  Q.  B.  314).  The  Acts  of  Geo.  ii.  applied  only  where  the  claims  of 
both  plaintiff  and  defendant  were  liquidated  {Morley  v.  Inglis,  1837, 
5  Sco.  314 ;  Grant  v.  Royal  Exchange  Assurance  (70.,  1816,  5  M.  &  S.  439  ; 
Howlet  V.  Strickland,  1774,  Cowp.  56),  and  only  where  both  claims  were 
enforceable  at  law  (see  Bawley  v.  Rawley,  1875,  L.  R.  1  Q.  B.  460) ;  and 
a  debt  which  had  arisen  since  the  commencement  of  the  action  could 
not  be  set  off  {Richard  v.  James,  1848,  2  Ex.  Rep.  471).  Nor  could  a 
debt  due  to  two  or  more  creditors  jointly  be  set  off  against  a  separate 
debt  of  one  of  them  {Middleton  v.  Pollock,  1875,  L.  R.  20  Eq.  515 ;  Bow- 
year  V.  Pawson,  1881,  6  Q.  B.  D.  540). 


SETTLED  ACCOUNT  249 

The  Acts  of  Geo,  ii.  did  not  apply  in  terms  to  equitable  claims  or 
demands.  But  the  Courts  of  equity  allowed  a  set-off  in  cases  which 
were  within  the  spirit,  though  not  within  the  words  of  the  Acts ;  and, 
on  the  other  hand,  did  not  permit  a  defendant  to  avail  himself  of  his 
legal  right  of  set-off  where  the  debts,  though  legally  mutual,  were  not 
equitably  mutual  {In  re  WMtehouse,  1878,  9  Ch.  D.  595;  Ex  parte. 
Prescott,  1753,  1  Atk.  230  ;  26  E.  E.  147;  In  re  West  of  England  Bank, 
1879,  12  Ch.  D.  823 ;  GilVs  Case,  1879, 12  Ch.  D.  755 ;  James  v.  Kynnier, 
1800,  5  Ves.  Jun.  108 ;  31  E.  E.  496 ;  Jeffs  v.  Wood,  1723,  2  P.  Wms. 
128;  24  E.  E.  668;  Freeman  v.  Lomas,  1851,  9  Hare,  109;  Eoxburghe 
V.  Cox,  1881,  17  Ch.  D.  524;  David  v.  Bees,  [1904]  2  K.  B.435 ;  Phillips 
V.  Howell,  [1901]  2  Ch.  773).  Thus,  if  a  customer  borrowed  money 
from  his  bankers,  and  gave  a  bond  for  the  amount,  and  subsequently 
a  balance  accrued  due  to  the  customer  on  his  general  banking  account, 
the  customer,  if  sued  on  the  bond,  was  entitled  to  set  off  the  balance 
due  on  the  general  account,  both  at  law  and  in  equity.  If,  in  such  a 
case,  there  was  a  change  in  the  banking  firm,  and  the  balance  became 
due  from  the  new  firm  after  notice  had  been  given  to  the  customer  of 
the  assignment  of  the  bond  to  such  new  firm,  there  was  no  right  of 
set-off  at  law,  because  the  assignment  was  not  effectual  at  law,  and  the 
debts  therefore  were  not  due  between  the  same  parties;  but  as  the 
persons  who  were  entitled  in  equity  to  sue  on  the  bond  were  the  same 
as  those  who  were  liable  for  the  general  balance,  a  set-off  was  allowed 
in  equity  {Cavendish  v.  Geaves,  1857,  24  Beav.  163 ;  53  E.  E.  319).  A 
banker  is  entitled  to  set  off  what  is  due  to  a  customer  on  one  account 
against  what  is  due  from  him  on  another,  although  the  moneys  due  on 
the  former  account  may  in  fact  belong  to  other  persons,  unless  the 
banker  has  notice  of  fraud  {Bank  of  New  South  Wales  v.  Goulbourn 
Valley  Battler  Factory,  [1902]  A.  C.  543). 

In  an  action  on  a  joint  and  several  promissory  note  against  a  party 
who,  to  the  knowledge  of  the  plaintiff,  signed  it  in  the  capacity  of  a 
surety  only,  it  was  held  that  the  surety  was  entitled  in  equity  to  set  off 
a  debt  due  from  the  plaintiff  to  the  principal  debtor,  such  debt  having 
arisen  out  of  the  same  transaction  in  respect  of  which  the  liability  of 
the  surety  arose  {Bechervaise  v.  Leivis,  1872,  L.  E.  7  C.  P.  372).  Where 
an  executor  or  administrator  sues  for  a  debt  accruing  due  to  him  in 
his  representative  capacity  after  the  death  of  the  deceased,  the  defendant 
is  not  entitled,  either  at  law  or  in  equity,  to  set  off  a  debt  which  was 
due  to  him  from  the  deceased  in  his  lifetime  {Bees  v.  Watts,  1855, 
11  Ex.  Eep.  410 ;  In  re  Gregson,  1889,  36  Ch.  D.  223 ;  Hallett  v.  Hallett, 
1879,  13  Ch.  D.  232;  Lamhardc  v.  Older,  1853,  17  Beav.  542;  51 
E.  E.  1144;  99E.  E.  274). 

As  to  the  right  of  set-off  in  connection  with  agency  transactions, 
and  in  bankruptcy  and  winding-up  proceedings,  see  the  articles  on 
Principal  and  AcxEnt  ;  Bankruptcy  ;  and  Company,  respectively. 

Settled  Account. — See  Account,  Settled. 


250 


SETTLED  LAND  ACTS  AND  POWEES 


Settled     Land    Acts 
Property  Settlements. 


and     PoAvers     in     Real 


TABLE  OF  CONTENTS. 


Introduction       .... 
Powers  to  Manage  Land    . 

Settled  Land  Act  Powers  Gen- 
erally        


250 
250 

251 
252 


Compound  Settlements  . 
Settlement  by  way  of  Trusts 

for  Sale        ....  253 

Donees  of  the  Powers      .         .  254 
Powers  Inextinguishable  and 

Inalienable  ....  255 

Contracts  to  Exercise  Powers  .  256 

Powers  are  Fiduciary      .         ,  256 

Trustees  of  the  Settlement      .  256 

Protection  of  Purchasers .        .  257 

Repeated  Exercise  .        .        .  258 

Relation  to  other  Powers         .  258 


Particular  Powers 

Sale,     Enfranchisement,     Ex- 
change, and  Partition  . 


258 


258 


259 
262 
263 
264 
264 
264 
265 


265 


Leasing  Generally  . 

Building  Leases 

Mining  Leases  . 

Occupation  Leases    . 
Acceptance  of  Surrenders 
Licences  to  Demise 
Borrowing  on  Mortgage  . 
Powers  Exercisable  with  Con 

sent      .... 
Conveyances    in    Exercise    of 

Powers  .         .         .         .265 

Capital  Money         .         .        .     265 
Court,  Procedure  and  Ireland    267 

Non-Statutort  Powers        .        .    267 

To  appoint  generally       .        .  267 

„  to  Issue         .         .  267 

,,  Jointures      .         .  267 

„  Portions        .         .  269 

To  charge  for  Donee's  Benefit  270 

Precedents 270 


It  was  formerly  usual  to  insert  in  settlements  of  land  a  number  of 
administrative  powers  which  are  now  conferred  by  the  Conveyancing 
and  Law  of  Property  Act,  1881,  and  the  Settled  Land  Acts,  1882-1890. 
Those  Acts  do  not  extend  to  Scotland  and  do  not  preclude  a  settlor 
from  conferring  on  the  tenant  for  life  or  the  trustees  of  the  settlement 
any  additional  or  larger  powers,  but  trustees  must  obtain  the  tenant  for 
life's  consent  to  their  exercise  of  such  powers  (S.  L.  A.  1882,  ss.  56  (2),  57  ; 
S.  L.  A.,  1884,  s.  6  (2)).  The  Acts  do  not  confer  any  of  the  dispositive 
powers  which  are  frequently  needed  in  settlements  of  land,  except  that 
authorising  the  application  of  rents  and  profits  during  minorities  in  the 
maintenance  and  education  of  infants.  The  subject  of  this  article,  so 
far  as  it  relates  to  the  statutory  powers,  has  been  treated  by,  among 
other  writers,  the  late  Mr.  H.  W.  Challis  in  the  earlier  editions  of  Hood 
and  Challis's  Conveyancing  and  Settled  Land  Acts.  His  great  knowledge 
of  the  older  law  gave  peculiar  value  to  his  criticism  of  the  statutory 
changes  in  it.  After  his  death  a  6th  ed.,  by  Messrs.  P.  F.  Wheeler  and 
J.  T.  Stirling,  was  published  in  1901. 

Powers  to  Manage  Land. — The  administrative  power  which  was 
usually  first  in  order  of  place  in  a  settlement  made  before  1882  was 
that  enabling  trustees  during  minorities  to  manage  the  land  and  to 
apply  the  rents  and  profits  in  the  most  convenient  manner.  The  Con- 
veyancing and  Law  of  Property  Act,  1881,  s.  42,  provided  the  following 
substitute  for  it : — If  and  as  long  as  any  person  who  would,  but  for  this 
section,  be  entitled  to  the  possession  of  any  land  is  an  infant,  and,  being 
a  woman,  is  also  unmarried — a  description,  it  should  be  noted,  applic- 
able to  all  such  infant  tenants  entitled  to  possession,  without  distinction 
of  title  or  estate ;  In  re  Cowley,  [1901]  1  Ch.  38 ;  note  ihid.,  sub-sees.  5 
(iii.)  and  7 — the  trustees  appointed  for  this  purpose  by  the  settlement, 
if  any ;  or  if  there  are  none  so  appointed,  then  the  persons,  if  any,  who 
are  for  the  time  being  under  the  settlement  trustees,  with  power  of  sale 
of  the  settled  land  or  of  part  thereof,  or  with  power  of  consent  to  or 


SETTLED  LAND  ACTS  AND  POWERS  251 

approval  of  the  exercise  of  such  a  power  of  sale ;  or  if  there  are  none, 
then  any  persons  appointed  as  trustees  for  this  purpose  {In  re  Hehjar, 
[1902]  1  Ch.  391)  by  the  Court  on  the  application  of  a  guardian  or  next 
friend  of  the  infant,  may  enter  into  and  continue  in  possession  of  the 
land.  They  shall  manage  or  superintend  its  management;  they  may 
fell  timber  or  cut  underwood  from  time  to  time  in  the  usual  course  for 
sale,  or  for  repairs,  or  otherwise ;  they  may  erect,  pull  down,  re-build 
and  repair  houses  and  other  buildings  and  erections ;  they  may  continue 
the  working  of  mines,  minerals,  and  quarries  which  have  been  usually 
worked;  they  may  drain  or  otherwise  improve  the  land  or  any  part 
thereof;  they  may  insure  against  loss  by  fire;  they  may  make  allow- 
ances to  and  arrangements  with  tenants  and  others ;  they  may  deter- 
mine tenancies;  they  may  accept  surrenders  of  leases  and  tenancies; 
and,  generally,  may  deal  with  the  land  in  a  proper  and  due  course 
of  management.  If  the  infant  be  impeachable  for  waste  the 
trustees  must  not  commit  it,  and  they  may  cut  timber  only  upon  the 
terms  and  subject  to  the  restrictions  which  would  be  applicable  to  the 
infant  if  adult  {ibid.,  subs.  2 ;  see  also  below  S.  L.  A.,  1882,  ss.  35,  59, 
60).  They  may  pay  out  of  income,  including  the  produce  of  sale  of 
timber  and  underwood,  expenses  of  management,  of  exercising  the 
above  powers,  outgoings  not  payable  by  tenants  or  others,  and  must 
keep  down  annual  sums  and  interest  on  principal  money  charges  (Con- 
veyancing Act,  1881,  s.  42,  subs.  3).  Sub-sees.  4  and  5  authorise  the 
trustees  to  apply  surplus  income  in  maintenance,  education,  or  benefit 
of  the  infant,  and  direct  them  to  invest  and  accumulate  the  residue  for 
the  benefit  of  the  infant  or  otherwise  as  therein  expressed.  If  the 
infant's  property  be  an  undivided  share  the  powers  may  be  exercised 
jointly  with  co-owners  or  persons  with  like  powers  over  the  other  shares 
(subs.  G).  The  section  applies  only  where  a  contrary  intention  is  not 
expressed  in  the  settlement  (subs.  7),  and  the  settlement  came  into 
operation  after  1881  (subs.  8). 

This  power  to  manage  land  does  not,  it  is  conceived,  authorise  donees 
of  it  to  raise  money  on  mortgage,  sell,  exchange,  make  partition,  en- 
franchise, or  even,  perhaps,  to  make  occupation  leases.  At  any  rate  it 
is  not  the  power  to  which  trustees  would  resort  in  order  to  accomplish 
any  of  those  objects.  In  most  cases  the  donees  of  powers  of  manage- 
ment, and  probably  in  every  case  in  which  it  would  be  expedient  for 
them  to  be  so  authorised,  they  either  are,  or,  by  means  of  an  application 
to  the  Court,  can  be  endowed  with  such  powers  of  sale,  leasing, 
cutting  timber,  and  other  powers  as  it  will  presently  appear  are  con- 
ferred by  the  Settled  Land  Acts  on  tenants  for  life  (S.  L.  A.,  1882,  ss. 
35,  38,  59,  60 ;  see  In  re  Jackson,  1882,  21  Ch.  D.  786 ;  In  re  Montagu, 
[1897]  2  Ch.  8). 

Settled  Land  Act  Powers  Generally. — For  the  most  part,  the 
powers  conferred  by  the  Settled  Land  Acts  are  such  as  before  the  com- 
mencement of  those  Acts  it  was  usual  to  insert  in  settlements  of  land. 
The  Acts  very  much  shortened  settlements,  and  they  ensured  the 
existence  during  the  currency  of  every  settlement  of  such  administrative 
powers  as  experience  had  shown,  and  the  legislature  judged  it  expedient 
in  the  interests  of  the  nation  generally,  as  well  as  of  the  beneficiaries 
under  that  settlement,  for  someone  at  all  times  to  possess.  The  powers 
of  leasing  formerly  inserted  in  settlements  had  been  usually  conferred 
on  the  tenants  for  life  in  possession ;  but  those  of  sale,  exchange, 
partition  and  enfranchisement,  on  trustees,  to  be  exercised  by  them  at 


252  SETTLED  LAND  ACTS  AND  POWEES 

the  request  or  with  the  consent  of  the  tenant  for  life.  The  statutory 
powers  are  all  conferred  on  the  tenant  for  life  in  possession,  if  any. 

Ordinarily  it  is  essential  to  the  availability  of  the  powers  conferred 
by  the  Settled  Land  Acts  that  three  things  shall  coexist — A  settlement 
as  defined  in  the  Acts :  S.  L.  A,  1882,  s.  2  (l)-(4) ;  S.  L.  A.,  1884,  s.  8  ; 
S.  L.  A.,  1890,  s.  4 ;  a  tenant  for  life  as  defined  in  S.  L.  A.,  1882,  s.  2 
(5)-(7),  or  a  person  having  the  powers  of  a  tenant  for  life  in  S.  L.  A., 
1882,  8.  58,  or  an  infant  entitled  in  possession  to  land,  sees.  59,  60 ; 
Hood  and  Challis,  6th  ed.,  202-204,  299-306;  Cornwallis-  West  arid  Munro's 
Contract,  [1903]  2  Ch.  150 ;  Lord  Wimhorne  and  Brovmes  Contract,  [1904] 
1  Ch.  537 ;  and  trustees  of  the  settlement  for  the  purposes  of  the  Acts 
as  defined  in  S.  L.  A.,  1882,  s.  2  (8);  S.  L.  A,  1890,  s.  16;  Hood  and  Challis, 
6th  ed.,  205 ;  In  re  Jackson  s  S.  E.,  [1902]  1  Ch.  258 ;  In  re  Spencer's  S.  E., 
[1903]  1  Ch.  75 ;  In  re  Spearman  S.  E.,  [1906]  2  Ch.  502 ;  but  a  settle- 
ment is  not  necessary  if  the  tenant  for  life  be  entitled  by  the  curtesy 
(S.  L.  A.,  1884,  s.  4),  or  if  the  tenant  entitled  in  possession  be  an  infant 
entitled  by  descent  (S.  L.  A.,  1882,  s.  59 ;  In  re  Wells,  1883,  31  W.  K. 
764;  In  re  Greenville,  1883,  11  Ir.  L.  138).  An  infant  is  deemed  tenant 
for  life  (ibid.).  The  existence  of  trustees  is  not  essential  to  the  ability 
of  a  tenant  for  life  to  make  leases  for  not  more  than  twenty-one  years 
at  rack  rent  without  fine,  and  leaving  the  leases  impeachable  for 
waste  (S.  L.  A.,  1890,  s.  7).  As  to  longer  leases,  see  Mogridge  v.  Clapp, 
[1892]  3  Ch.  382. 

The  settlement  may  consist  of  one  instrument  or  of  several;  it 
must  govern  an  estate  or  interest  in  land,  which  word  includes  incor- 
poreal hereditaments  and  undivided  shares ;  the  land  must  stand  for 
the  time  being  limited  to  or  in  trust  for  persons  by  way  of  succession 
(S.  L.  A.,  1882,  s.  2  (l)-(4),  (10) ;  s.  58  (1)  iv. ;  S.  L.  A.,  1884,  s.  8 ;  Vine 
V.  Raleigh,  [1896]  1  Ch.  37 ;  In  re  Pocock  and  Prankerd,  [1896]  1  Ch.  302  ; 
In  re  Marshall,  [1905]  2  Ch.  325  ;  In  re  Bond,  [1901]  1  Ch.  15.  As  to 
the  effect  of  the  creation  of  annuities,  see  A.-G.  v.  Owen,  [1899]  2  Q.  B. 
253).  Some  assignments  or  charges  made  by  a  tenant  for  life  upon  his 
estate  or  interest  under  the  settlement  may  be  deemed  one  of  the 
instruments  creating  the  settlement  (S.  L.  A.,  1890,  s.  4 ;  see  In  re 
Tibhit's  S.  E.,  [1897]  2  Ch.  149) ;  but  if  made  for  value  they  embarrass 
him  in  the  exercise  of  his  powers,  except  that  of  making  rack-rent 
leases  without  fine  (S.  L.  A.,  1882,  s.  50  (3)). 

Com'pound  Settlements. — The  S.  L.  A.,  1882,  s.  2  (1),  enacts  {int.  al.) 
as  follows : — "  Any  number  of  instruments  .  .  .  under  or  by  virtue  of 
which  .  .  .  any  land,  or  any  estate  or  interest  in  land,  stands  for 
the  time  being  limited  to  or  in  trust  for  any  persons  by  way  of 
succession  creates  or  is  for  the  purposes  of  this  Act  a  Settlement." 
In  1892  Mr.  Justice  North  said  of  two  instruments  which  answered  that 
description  that  they  formed  what  he  might  call  "one  compound 
settlement,"  [1892]  2  Ch.  225 ;  and  in  1893  Mr.,  afterwards  Lord,  Justice 
Stirling  called  a  settlement  created  by  several  instruments  "the 
compound  settlement,"  [1893]  2  Ch.  359.  The  term  has  since  come 
into  common  use  to  denote  a  settlement  of  land  created  or  existing  by 
virtue  of  several  instruments.  In  the  case  before  Mr.  Justice  North 
different  parcels  of  land  were  similarly  settled  by  two  instruments ;  in 
that  before  Mr.  Justice  Stirling  a  great  family  estate  stood  limited  to  or  in 
trust  for  persons  successively  by  virtue  of  several  successive  instruments, 
some  taking  by  virtue  of  one  instrument  and  some  by  virtue  of  another. 
That  case  surprised  lawyers  by  showing  that  the  Settled  Land  Act  had 


SETTLED  LAND  ACTS  AND  POWEES  253 

wrought  a  change  which  they  had  not  recognised.  Before  1883  when 
land  stood  limited  by  one  settlement  to  uses  to  secure  a  jointure  rent- 
charge  and  a  sum  to  be  raised  for  portions  for  the  benefit  of  the  widow 
and  younger  children  of  a  deceased  husband  and  father,  and  subject 
thereto  also  stood  limited  by  virtue  of  a  subsequent  settlement  to  the 
use  of  a  son  of  that  father  for  life  with  remainders,  the  later  settlement 
was  accounted  the  only  settlement — the  jointure  and  portions  charge 
created  by  the  older  instrument  were  regarded  as  incumbrances  to 
which  the  later  settlement  was  made  subject.  The  powers  of  sale,  etc., 
inserted  in  the  later  settlement  did  not  enable  the  donee  to  sell  dis- 
charged from  the  only  relics  of  the  older  one ;  but  after  1882  the 
tenant  for  life  under  the  later  settlement  could  sell  the  land  discharged 
from  the  jointure  and  portions — they  being  treated  as  limitations  for 
persons  by  way  of  succession  under  the  compound  settlement  created 
by  the  two  instruments  {In  re  Marquis  of  Ailesbury  and  Iveagh,  [1893] 
2  Ch.  345 ;  In  re  Mundy  and  Boper's  Contract,  [1899]  1  Ch.  275,  294). 
A  more  comprehensive  settlement  consisting  of  several  deeds,  and  a  less 
comprehensive  settlement  consisting  of  one  deed  may  coexist  (In  re  Du 
cane  and  Nettle/old's  Cmtrad,  [1898]  2  Ch.  96, 105  ;  approved  [1899]  1  Ch. 
296).  Where  the  compound  settlement  consists  of  consecutive  instru- 
ments the  donee  of  the  statutory  powers  is  the  person  still  living  who 
at  the  time  of  exercising  them  had  first  become  entitled  as  tenant  for 
life  even  though  before  that  time  he  may  have  parted  with  his  life 
estate  {In  re  Lord  Wimborne  and  Browne's  Contract,  [1904]  1  Ch.  537). 
Trusteeship  of  a  compound  settlement  is  a  matter  which  has  given  a 
good  deal  of  trouble.  If  there  be  not  trustees  of  such  a  settlement  for 
the  purposes  of  the  Acts  the  Court  can  and  will  appoint  some  (S.  L.  A., 
1882,  8.  38).  To  the  writer  it  seems  that  if  the  same  persons  be  validly 
appointed  by  privately  made  instruments  to  be  trustees  of  every  one  of 
the  constituent  settlements  for  the  purposes  of  the  Settled  Lands  Acts, 
those  persons  so  become  trustees  of  the  resulting  compound  settlement 
for  those  purposes ;  but  he  does  not  know  whether  the  general  opinion 
of  those  competent  to  form  one  agrees  with  his  or  is  in  favour  of  the 
proposition  that  trustees  of  a  compound  settlement,  for  the  purposes 
of  the  Acts,  must  in  every  case  be  appointed  by  the  Court. 

The  decisions  in  In  re  Mundy's  S.  E.,  [1891]  1  Ch.  399 ;  In  re  Byng's 
S.  E.,  [1892]  2  Ch.  219 ;  In  re  Spearman  S.  E.,  [1906]  2  Ch.  502 ;  In  re 
Moore,  [1906]  1  Ch.  789 ;  and  In  re  Child's  Settlenunt,  [1907]  2  Ch.  348, 
implicitly  support  the  writer's  view;  some  language  of  the  judges 
in  In  re  Marquis  of  Ailesbury  and  Lord  Iveagh,  [1893]  2  Ch.  345;  In  re 
Spencer,  [1903]  1  Ch.  75,  and  In  re  Cmll's  S.  E.,  [1905]  1  Ch.  712,  seem 
to  be  opposed  to  it. 

Settlement  by  Way  of  Trusts  for  Sale. — The  Settled  Land  Act,  1882, 
was  made  applicable  to  land  settled  by  way  of  trust  or  direction  to  sell, 
and  to  apply  the  sale  money,  or  its  income,  or  that  of  the  land  till  sale, 
for  the  benefit  of  any  person  for  his  life  or  any  other  limited  period,  or 
for  the  benefit  of  two  or  more  persons  concurrently  for  any  limited 
period ;  and  the  person  so  beneficially  entitled  is  to  be  deemed  tenant 
for  life  of  the  land  so  settled,  and  a  series  of  long  provisions  adapting 
the  Act  to  that  case  were  enacted  {ibid.,  s.  63).  The  enactment,  however, 
was  found  to  embarrass  rather  than  to  facilitate  dispositions  of  land  so 
settled,  and  by  the  Settled  Land  Act,  1884,  it  was,  among  other  things, 
enacted  that  the  powers  conferred  by  sec.  63  of  the  Act  of  1882  should 
not  be  exercised  without  the  leave  of  the  Court  (S.  L.  A.,  1884,  s.  7  (i.)). 


254  SETTLED  LAND  ACTS  AND  POWERS 

and  that  an  order  giving  such  leave  should  be  registered,  and  from  time 
to  time  reregistered,  as  a  lis  pendcTis  {ibid.  (v.)).  Hence  the  exercise  of 
the  powers  created  by  the  Settled  Land  Acts,  1882-1890,  over  land 
settled  by  way  of  trust  for  sale  is  infrequent ;  but  upon  any  dealing  with 
the  trustees  of  such  a  settlement,  acting  in  performance  of  the  trusts 
contained  in  it,  a  search  at  the  Land  Registry,  63  &  64  Vict.  c.  26,  Lord 
Chancellor's  Order,  3rd  August  1900,  for  lis  2}ende7is  against  them  is 
necessary,  in  order  to  ascertain  that  their  authority  has  not  been  taken 
from  them  by  an  order  giving  to  another  person  leave  to  exercise 
the  powers  under  which  they  propose  to  act  (In  re  fforne,  1888,  39 
Ch.  D.  84). 

Donees  of  the  Powers. — The  Settled  Land  Act  powers  are  conferred 
primarily  on  the  tenant  for  life,  except  where  sales  to  or  purchases  from 
him,  or  exchanges  or  partitions  with  him,  are  to  be  effected,  in  which 
case  the  trustees  of  the  settlement  are  substituted  (S.  L.  A.,  1890,  s.  12). 
The  tenant  for  life  is  the  person  for  the  time  being  beneficially  entitled 
to  possession  of  the  settled  land  for  his  life ;  even  determinably  (In  re 
Game's  S.  E.,  [1899]  1  Ch.  324).  Two  or  more  persons  so  entitled  in 
common,  or  jointly,  together  constitute  the  tenant  for  life.  Incum- 
brances or  charges  on  his  estate  or  interest,  even  if  exhaustive,  do  not 
deprive  him  of  the  character  (S.  L.  A.,  1882,  s.  2  (5)-(7) ;  In  re  Jones, 

1884,  26  Ch.  D.  736),  and  the  tenant  for  life  of  an  undivided  share  may 
join  with  any  person  entitled  to  or  having  power  or  right  of  disposition 
over  another  undivided  share  for  any  purpose  of  the  Act  (ihid.,  s.  19). 

The  following  persons,  when  entitled  in  possession  (beneficially, 
In  re  Jeimnett  and  Guest's  Contract,  [1907]  1  Ch.  629),  have  the  powers 
of  a  tenant  for  life  under  the  Act  (Hid.,  s.  58  (1)) : — 

(i.)  A  tenant  in  tail,  even  one  restrained  from  barring  his  estate,  and 
though  the  reversion  be  in  the  Crown,  unless  the  land  was  purchased  with 
money  provided  by  Parliament  in  consideration  of  public  services  (see  note 
in  Hood  and  Challis,  6th  ed.,  300;  The  Boltm  Estates,  [1903]  2  Ch.  461). 
(ii.)  A  tenant  in  fee  with  an  executory  limitation,  gift,  or  disposition  over, 
on  failure  of  his  issue  or  in  any  other  event  (see  Conveyancing  Act,  1882, 
s.  10  ;  In  re  Morgan,  1883,  24  Ch.  D.  114  ;  In  re  James's  S.  E.,  1884,  32  W.  R. 
898 ;  In  re  Moishead,  [1893]  W.  N.  180 ;  In  re  Richardson,  [1904]  2  Ch.  777). 
(iii.)  A  person  entitled  to  a  base  fee,  even  though  the  reversion  be  in  the 
Crown  (In  re  Hazle,  1885,  29  Ch.  D.  78;  Wolstenholme  Conveyancing  Acts, 
5th  ed.,  288  ;  Hood  and  Challis,  6th  ed.,  302).  (iv.)  A  tenant  for  years  deter- 
minable on  life,  not  holding  merely  under  a  lease  at  a  rent  (see  In  re  Hazle, 

1885,  29  Ch.  D.  78).  (v.)  A  tenant  for  the  life  of  another  not  holding  merely 
under  a  lease  at  a  rent  (in  re  Atkinson,  1886,  31  Ch.  D.  577  ;  Vine  v.  Raleigh, 
[1896]  1  Ch.  37 ;  In  re  Jemmett  and  Guest,  [1907]  1  Ch.  629).  (vi.)  A  tenant 
for  his  own  or  any  other  life,  or  for  years  determinable  on  life,  whose  estate 
is  liable  to  cease  in  any  event  during  that  life,  whether  by  expiration  of  the 
estate,  or  by  conditional  limitation,  or  otherwise,  or  to  be  defeated  by  an 
executory  limitation,  gift,  or  disposition  over,  or  is  subject  to  a  trust  for 
accumulation  of  income  for  payment  of  dehts  (In  re  Jones,  ubi  supra ;  In  re 
Clitheroe  Estate,  1885,  31  Ch.  D.  135),  or  other  purpose  (but  see /%  re  iS'^rawp't^a^/.s, 
1885,  34  Ch.  D.  423  ;  see  also  on  this  clause  In  re  Paget' s  S.  E.,  1885,  30  Ch.  D. 
161  ;  In  re  Atkinson,  1886,  31  Ch.  D.  577  ;  Williams  v.  Jenkins,  [1893]  1  Ch. 
700 ;  In  re  Llanover,  [1907]  1  Ch.  635).  (vii.)  A  tenant  in  tail  after  possibility 
of  issue  extinct,  (viii.)  A  tenant  by  the  curtesy  (Mogridge  v.  Clapp,  [1892] 
3  Ch.  382).  (ix.)  A  person  entitled  to  the  income  of  land  under  a  trust  or 
direction  for  payment  thereof  to  him  during  his  own  or  any  other  life,  whether 
subject  to  expenses  of  management  or  not,  or  until  sale  of  the  land,  or  until 


SETTLED  LAND  ACTS  AND  POWERS  255 

forfeiture  of  his  interest  therein  on  bankruptcy  or  other  event  {In  re  Jones, 
1884,  26  Ch.  D.  736  ;  In  re  Atkinson,  1886,  31  Ch.  D.  577  ;  Inre  Hoi-ne's  S.  E., 
1888,  39  Ch.  D.  84;  In  re  Pocock  and  Frankerd,  [1896]  1  Ch.  302;  In  re 
Llanover,  [1907]  1  Ch.  635). 

The  provisions  of  the  Act  referring  to  a  tenant  for  life  and  to  a 
settlement  and  to  settled  land  extend  to  each  of  the  above  described 
persons,  and  to  the  instrument  under  which  his  estate  or  interest  arises, 
and  to  the  land  therein  comprised ;  and  any  reference  in  the  Act  to  death 
as  regards  the  tenant  for  life,  where  necessary,  is  to  be  deemed  to  refer 
to  the  determination  by  death  or  otherwise  of  such  estate  or  interest  as 
last  aforesaid  (ibid.  (2),  (3)). 

Land  to  which  an  infant  is  entitled,  even  by  descent  (In  re  Wells,  vM 
supra ;  In  re  Greenville,  ubi  supra),  if  in  possession,  is  for  the  purposes 
of  the  Act  settled  land,  and  the  infant  to  be  deemed  tenant  for  life  of 
it,  and  his  powers  as  such  may  be  exercised  on  his  behalf  by  the  trustees 
of  the  settlement,  or  if  there  be  none,  by  such  person  and  in  such  manner 
as  the  Court,  on  the  application  of  a  testamentary  or  other  guardian  or 
next  friend  of  the  infant,  shall  order  (ibid.,  ss.  59,  60). 

Where  a  person,  who  if  a  man  would  be  entitled  as  tenant  for  life  or 
otherwise  to  the  powers,  is  a  wife,  she  and  her  husband  have,  or  if  she  is 
entitled  to  the  land  for  her  separate  use  or  as  her  separate  property  or 
as  a  feme  sole,  she  alone  has  the  powers  (ibid.,  s.  61  (2),  (3)).  She  is 
expressly  authorised  to  execute  all  proper  deeds,  and  her  powers  are  not 
affected  by  a  restraint  on  anticipation  (ibid.,  sub-sees.  (5),  (6) ;  see  also 
s.  55  (2)). 

The  committees  of  the  estates  of  lunatics  so  found,  and  having  the 
powers,  may,  under  an  order  of  the  proper  judge,  exercise  them  on  the 
lunatic's  behalf  (ibid.,  s.  62).  Provision  for  the  cases  of  persons  of  unsound 
mind  not  so  found  is  made  by  the  Lunacy  Act,  1890,  ss.  116-130,  which 
appear  to  enable  leases  (In  re  Salt,  [1896]  1  Ch.  117),  but  not  sales  (In  re 
Baggs,  [1894]  2  Ch.  416?i.),  to  be  made  under  the  Settled  Land  Act 
powers.  See  also  a  review  of  the  Acts  and  previous  decisions  by  the 
Full  Court  of  Appeal  in  In  re  S.  S.  B.,  [1906]  1  Ch.  712. 

Powers  Inextinguishable  and  Inalienable. — The  powers  given  by  these 
Acts  cannot  be  assigned  (In  re  Barlow's  Contract,  [1903]  1  Ch.  382)  or 
released,  and  do  not  pass  to  an  assignee  of  a  tenant  for  life's  estate,  and 
he,  notwithstanding  the  assignment,  can  afterwards  exercise  them  (In  re 
Mundy  arul  Roper' s  Contract,  [1899]  1  Ch.  275  ;  In  re  Lord  Wimbomeand 
Browne,  [1904]  1  Ch.  537;  In  re  Marshall,  [1905]  2  Ch.  325);  he  cannot 
effectually  contract  not  to  exercise  them.  This  enactment  is  retrospec- 
tive as  well  as  prospective,  and  in  it  assignment  includes  mortgage, 
partial  assignment,  and  charge,  but  it  operates  without  prejudice  to  the 
rights  of  assignees  for  value  of  the  tenant  for  life's  estate  or  interest. 
Those  rights  cannot  be  affected  without  the  owner's  consent,  except,  if 
the  assignee  be  not  in  possession,  by  rack-rent  leases  without  fine  made 
conformably  to  the  Acts  (S.  L.  A.,  1882,  s.  50;  In  re  Sebright,  1886,  33 
Ch.  D.  429  ;  S.  L.  A.,  1890,  ss.  4,  7;  Stirling,  J.  [1898]  2  Ch.  p.  110). 
Possibly  such  rights,  if  acquired  before  the  commencement  of  the  Act  of 
1882,  may  be  greater  than  if  they  be  acquired  later.  Attempts  made  in 
the  settlement  or  otherwise  to  prevent  a  tenant  for  life  from  exercising, 
or  to  induce  him  not  to  exercise  the  powers  the  Acts  give  him,  are  to  be 
deemed  void  (ibid.,  ss.  51,  52 ;  In  re  Paget's  S.  E.,  1885,  30  Ch.  D.  161 ; 
In  re  Atkinson,  1886,  31  Ch.  D.  577,  581 ;  In  re  Haynes,  1887,  37  Ch.  D. 
306 ;  In  re  Ames,  [1893]  2  Ch.  479  ;  In  re  Sudbury  and  Poynton  Estates, 


256  SETTLED  LAND  ACTS  AND  POWERS 

[1893]  3  Ch.  74,  77 ;  In  re  Smith,  [1899]  1  Ch.  331 ;  In  re  Trenchard, 
[1902]  1  Ch.  378). 

Contracts  to  Exercise  Powers. — A  tenant  for  life  may  contract  to 
exercise  powers  given  him  by  the  Acts,  and  those  contracts  may,  and 
must  be,  performed  by  his  successors  {ibid.,  s.  31 ;  S.  L.  A.,  1890,  s.  6). 

Powers  are  Fiduciary. — The  donees  of  these  powers  must,  in  exercis- 
ing them,  have  regard  to  the  interests  of  all  parties  entitled  under  the 
settlement,  and  shall  in  the  exercise  of  them  be  deemed  to  be  in  the 
position  and  to  have  the  duties  and  liabilities  of  trustees  for  those 
parties  (S.  L.  A.,  1882,  s.  53). 

Whether  this  section  confers  on  donees  of  the  powers  any  of  the 
rights  of  trustees,  as  well  as  imposes  on  them  some  of  a  trustee's  re- 
sponsibilities, seems  to  be,  to  say  the  least,  doubtful  (Stirling,  J.,  1887, 
37  Ch.  D.  325 ;  Lopes,  L.J.,  [1893]  3  Ch.  266).  Moreover,  though  the 
section  adverts  only  to  the  interests  of  persons  entitled  under  the  settle- 
ment, the  powers  of  sale  and  perhaps  others  given  by  the  Acts  are 
created  for  the  benefit  of  the  settled  land  and  the  persons  employed  on  it 
also  (Bruce  v.  Marquis  of  Ailesbury,  [1892]  A.  C.  356  ;  Stirling,  J.,  [1893] 
2  Ch.  355 ;  In  re  Aldam,  [1902]  2  Ch.  46,  56,  58,  62).  The  tenant  for 
life  may  regard  the  feelings  of  other  beneficiaries  than  himself  (Lindley, 
L.J.,  [1892]  1  Ch.  534;  In  re  Hope,  [1899]  2  Ch.  679);  but  notwith- 
standing some  observations  made  while  the  original  Act  was  new 
(23  Ch.  D.  759;  25  Ch.  D.  654),  it  is  conceived  that  a  donee  of  the 
powers  ought  not  to  exercise  them  capriciously.  According  to  one 
decision  he  cannot  exercise  them  according  to  his  own  conception  of 
public  duty  if  it  be  not  a  conception  generally  approved  {In  re  Earl 
Somers,  1895,  39  S.  J.  705 ;  11  T.  L.  R.  567).  He  cannot  delegate  his 
power,  as  he  would  by  agreeing  to  sell  at  a  price  to  be  ascertained  by 
valuation  {In  re  Earl  of  Wilton's  S.  E.,  [1907]  1  Ch.  50,  55,  and  case  there 
cited).  His  institution  of  an  action  for  performance  of  the  trusts  of  a 
settlement  does  not  suspend  his  power  to  sell  {Cardigan  v.  Curzon  Howe, 
1885,  30  Ch.  D.  531).  In  the  absence  of  evidence  to  the  contrary,  a 
donee  of  the  powers  must  be  presumed  to  be  exercising  them  fairly  (see 
Stirling,  J.,  1889,  43  Ch.  D.  95 ;  see  also  Kay,  J.,  1888,  38  Ch.  D.  345 ; 
Chitty,  J.,  1885,  30  Ch.  D.  539,  540 ;  Lord  Esher,  M.R.,  Lindley,  and 
Lopez,  L.JJ.,  1886,  32  Ch.  D.  8,  11,  14;  Lindley,  L.J.,  [1892]  1  Ch.536). 
In  several  cases,  however,  proposed  exercises  of  these  powers  have  been 
restrained  {Wheelwright  v.  Walker,  1883,  31  W.  R.  912;  Hampden  v. 
Earl  of  Buckinghamshire,  [1893]  2  Ch.  531),  and  though  even  the  fact 
that  a  proposed  exercise  of  his  power  will  be  beneficial  to  the  tenant  for 
life,  and  may  be  detrimental  to  a  remainderman,  may  not  be  fatal  to  the 
proposed  exercise  {In  re  Lord  Stamford's  Estate,  1887,  56  L.  T.  484;  In 
re  Eichurdson,  [1900]  2  Ch.  778),  yet  in  a  suspicious  case  inquiry  has  been 
directed  {In  re  Sebright's  S.  E.,  1886,  33  Ch.  D.  429),  and  abuses  have 
been  declared  void  {Sutherland  v.  Sutherland,  [1893]  3  Ch.  169 ;  Chandler 
V.  Bradley,  [1897]  1  Ch.  315). 

Trustees  of  the  Settlement. — Trustees  under  a  settlement  with  power 
of  sale  of  settled  land,  or  with  power  of  consent  to  or  approval  of  the 
exercise  of  such  a  power  of  sale ;  or,  failing  such,  trustees  with  power 
of  or  upon  trust  for  sale  of  any  other  land  comprised  in  the  settlement 
and  subject  to  the  same  limitations  as  the  land  to  be  sold  {In  re  Moore, 
[1906]  1  Ch.  789),  or  with  power  of  consent  to  or  approval  of  the 
exercise  of  such  a  power ;  or,  failing  such,  trustees  with  a  future  power 
of  or  trust  for  sale  of  the  land  to  be  sold  {In  re  Jackson,  [1902]  1  Ch. 


SETTLED  LAND  ACTS  AND  POWEES  257 

258),  or  with  a  power  of  consent  to  or  approval  of  the  exercise  of  such 
a  future  power ;  or,  if  there  be  no  such  trustees,  the  persons,  if  any,  who 
are  by  the  settlement  declared  to  be  trustees  thereof  for  the  purposes 
of  these  Acts  are,  for  those  purposes,  trustees  of  the  settlement  (S.  L.  A., 
1882,  s.  2  (8) ;  S.  L.  A.,  1890,  s.  16).  In  In  re  Garnctt-Orme  and  Haryreave's 
Contract,  1883,  25  Ch.  D.  595,  powers  to  sell  in  trustees  were  implied. 
Where  there  are  no  such  trustees,  the  Court,  on  application  by  a  bene- 
ficiary, will  appoint  them  (S.  L.  A.,  1882,  s.  38 ;  In  re  Spencer,  [1903] 
1  Ch.  75),  and  the  provisions  of  the  Trustee  Act,  1893,  with  reference 
to  the  appointment  of  new  trustees,  are  applicable  to  the  appointment 
of  trustees  for  the  purposes  of  these  Acts  (S.  L.  A.,  1890,  s.  17 ;  Trustee 
Act,  1893,  s.  47). 

The  trustees  of  the  settlement  are  in  most  cases  the  recipients  of 
capital  money  arising  under  the  Act  (S.  L.  A.,  1882,  s.  22).  It  is  not  to 
be  paid  to  fewer  than  two  trustees,  unless  the  settlement  authorises  its 
receipt  by  one  (S.  L.  A.,  1882,  s.  39  (1);  In  re  Garnett-Ornie  and  Har- 
greaves  Contracts,  u.s.) ;  but,  subject  to  that  prohibition,  the  provisions 
relating  to  trustees  apply  to  the  survivors  or  survivor  {ibid.  (2)).  The 
receipts  in  writing  of  the  trustees  are  effectual  discharges  {ihid.,  s.  40), 
and  the  indemnity  of  the  trustees  is  provided  for.  They  can  obtain  the 
direction  of  the  Court  in  the  event  of  difference  with  the  tenant  for  life 
(ss.  41-44).    As  to  trusteeship  of  compound  settlements,  see  above,  p.  253. 

A  tenant  for  life  when  intending  to  make  a  sale,  exchange,  partition, 
or  lease — except  one  for  not  more  than  twenty-one  years  at  the  best 
rent,  without  fine  and  without  exempting  the  lessee  from  punishment 
for  waste — or  a  mortgage  or  charge,  must  give  notice  of  his  intention, 
which  may  be  notice  of  a  general  intention  in  that  behalf,  and  in  the 
manner  prescribed  by  the  Acts,  and  upon  request  the  tenant  for  life 
must  furnish  particulars  of  the  acts  in  progress  or  immediately  intended 
(S.  L.  A.,  1882,  s.  45  ;  S.  L.  A.,  1884,  s.  5  ;  S.  L.  A.,  1890,  s.  7);  but  with 
reference  to  a  lease,  see  Mogridge  v.  Clajyp,  [1892]  3  Ch.  382,  and  a 
person  dealing  in  good  faith  with  the  tenant  for  life  is  not  concerned 
to  inquire  respecting  the  giving  of  notice  (S.  L.  A.,  1882,  ss.  45  (3),  54), 
and  a  trustee  by  writing  may  waive  notice,  and  may  accept  less  than 
the  prescribed  notice  (S.  L.  A.,  1884,8.  5).  This  does  not,  it  is  conceived, 
enable  a  purchaser  to  deal  with  the  tenant  for  life  unless  there  are 
trustees,  or,  if  the  case  admits  of  it,  a  trustee  of  the  settlement  for  the 
purposes  of  the  Acts,  or  in  the  face  of  knowledge  that  notice  has  not 
been  given ;  but  if  there  be  trustees,  and  they  are  parties  to  the  trans- 
action, the  purchaser  may,  it  seems,  be  safe,  for  they  may  have  waived 
notice,  or,  by  being  parties  to  and  executing  the  conveyance  or  other 
deed,  may  have  accepted  a  short  one  {Duke  of  Marlborough  v.  Sartoi-is, 
1886,  32  Ch.  D.  616 ;  Hatten  v.  Russell,  1888,  38  Ch.  D.  334 ;  and  where 
money  is  paid  into  Court,  see  In  re  Fisher  and  Grazebrook,  [1898]  2  Ch. 
660). 

Protection  of  Purchasers. — A  purchaser,  lessee,  mortgagee,  or  other 
person  dealing  in  good  faith  with  a  tenant  for  life,  or  with  a  person 
having  the  powers  of  a  tenant  for  life,  shall,  as  against  all  parties 
entitled  under  the  settlement,  be  conclusively  taken  to  have  given  the 
best  price,  consideration,  or  rent,  as  the  case  may  require,  that  could 
reasonably  be  obtained  by  the  tenant  for  life,  and  to  have  complied  with 
all  the  requisitions  of  this  Act  (S.  L.  A.,  1882,  ss.  54,  58  (2);  Chitty,  J., 
1886,  32  Ch.  D.  624 ;  Kay,  L.J.,  [1892]  3  Ch.  400 ;  Chandler  v.  Bradley, 
[1897]  1  Ch.  315 ;  as  to  notice,  see  Conveyancing  Act,  1882,  s.  3). 

VOL.  XIII.  17 

/ 


258  SETTLED  LAND  ACTS  AND  POWEKS 

Repeated  Exercise. — The  powers  conferred  by  the  Act  may  be  exer- 
cised from  time  to  time ;  tenants  for  life  and  trustees  of  the  settlement 
may  execute,  make,  and  do  all  deeds,  instruments,  and  things  necessary 
for  the  exercise  of  their  powers ;  and  any  provision  in  the  Acts  referring 
to  any  sale,  purchase,  etc.,  or  to  any  power,  etc.,  extends  only,  unless 
otherwise  expressed,  to  sales,  etc.,  under  the  Acts  (S.  L.  A.,  1882, 
ss.  55,  58  (2)). 

Relation  to  other  Powers. — The  Acts  do  not  prejudicially  affect  powers 
otherwise  created:  those  they  give  are  cumulative;  but  in  cases  of 
conflict  concerning  any  matter  in  respect  whereof  the  tenant  for  life 
exercises  or  contracts,  or  intends  to  exercise  any  power  under  the  Acts, 
the  provisions  of  the  Acts  prevail,  and  his  consent  is  necessary;  or 
where  several  persons  constitute  the  tenant  for  life,  the  consent  of  one 
of  them  is  necessary  to  the  exercise  of  any  such  other  power.  In  cases 
of  doubt  the  Court  may,  on  the  application  of  a  person  interested,  advise 
thereon  {ibid.,  s.  56 ;  In  re  Duke  of  Newcastle,  1883,  24  Ch.  D.  129,  140 ; 
In  re  Clitheroe,  1885,  28  Ch.  D.  378 ;  31  Ch.  D.  135 ;  Lonsdale  v.  Lowther, 
[1900]  2  Ch.  687;  In  re  Lady  Bentinck  and  L.  &  N.-W.  Rly.  Co.,  1895, 
12  T.  L.  K.  100 ;  In  re  Osborn  &  Brights,  Ltd.,  [1902]  1  Ch.  335 ;  S.  L.  A., 
1884,  8.  6  (2)). 

Sees.  46-49  relate  to  the  Court,  Land  Commissioners,  and  Procedure. 
With  reference  to  Ireland,  see  sec.  65,  and  to  Durham,  52  &  53  Vict, 
c.  47,  s.  10,  giving  jurisdiction  to  the  Palatine  Court ;  see  also  of  the 
same  session  c.  30,  which  substituted  the  Board  of  Agriculture  for  the 
Land  Commissioners.  Concerning  procedure,  see  In  re  Ailesbury  S.  E., 
1893,  42  W.  R.  45;  and  expenses,  37  Ch.  D.  317;  Hood  and  Challis, 
6th  ed.,  index,  "  Costs  under  S.  L.  A." 

Additional  powers  may  be  given  to  the  tenant  for  life  or  the  trustees 
of  the  settlement  (S.  L.  A.,  1882,  s.  57,  but  note  sec.  56  above). 

Particular  Powers. — Sale,  Enfranchisement,  Exchange,  and  Partition, 
— A  donee  of  the  powers  may  sell  all  or  any  part  {In  re  Pearson,  1901, 
83  L.  T.  626,  underground  space;  In  re  Gladstone,  [1900]  2  Ch.  101; 
In  re  Duke  of  Rutland's  S.  E.,  [1900]  2  Ch.  206,  surface  only)  of  the 
settled  land,  except  as  mentioned  below,  or  any  easement,  right,  or 
privilege  {Sitwell  v.  Earl  of  Londeshorough,  [1905]  1  Ch.  460)  over  it 
(S.  L.  A.,  1882,  ss.  2,  sub-sees.  1  (4),  (10)  i.  iv.;  3  (1);  Conv.  Act,  1881, 
s.  62),  either  with  or  without  the  minerals,  and  either  granting  or 
reserving  such  powers  and  rights  as  are  described  in  sec.  17 ;  he  may 
sell  the  seignory  of  freehold,  or  the  freehold  and  inheritance  of  copyhold 
land  within  or  parcel  of  a  settled  manor,  with  or  without  minerals  or 
mining  rights  or  powers,  so  as  to  effect  enfranchisement  {ibid.,  s.  3,  ii.) ; 
and  he  may  exchange  all  or  any  of  the  settled  land  for  other  land,  or 
for  land  and  money  (s.  3,  iii.),  but  if  the  land  parted  with  be  in  England, 
so  must  that  taken  be  (s.  4  (8)),  and  he  may  make  partition  with  or 
without  money  paid  for  equality  (s.  3,  iv.) ;  but  he  may  not  sell  without 
the  consent  of  the  trustees  or  the  Court  the  principal  mansion-house, 
pleasure  ground,  and  park  and  land  occupied  therewith,  unless  the 
house  is  usually  occupied  as  a  farmhouse,  or  the  whole  does  not  exceed 
twenty-five  acres  (S.  L.  A.,  1890,  s.  10 ;  Gilbey  v.  Riish,  [1906]  1  Ch.  11 ; 
Pease  v.  Courtney,  [1904]  2  Ch.  503).  "With  the  sanction  of  the  Court 
he  may  sell  chattels  settled  as  heirlooms  (s.  37;  Hood  and  Challis, 
6th  ed.,  274).  The  execution  of  these  powers  is  facilitated  by  powers 
to  contract  (S.  L.  A.,  1882,  s.  31);  to  shift  incumbrances  with  the  consent 
of  the  incumbrancers,  so  as  to  exonerate  property  parted  with  (ss.  5, 


SETTLED  LAND  ACTS  AND  POWEES  259 

24  (4);  cp.  Conv.  Act,  1881,  s.  5);  to  raise  money  on  mortgage  for 
equality  of  exchange  or  partition  (S.  L.  A.,  1882,  s.  18);  to  grant  or 
reserve  powers  and  rights  needed  for  mining  purposes  (ihid.,  s.  3, 
ii.  4  (6),  s.  17;  In  re  Aldam's  S.  E.,  [1902]  2  Ch.  46);  to  exchange 
easements,  and  on  exchange  or  partition,  to  grant  or  reserve  easements, 
rights,  or  privileges  (S.  L.  A.,  1890,  s.  5).  Sales  to  and  by  the  tenant  for 
life  are  provided  for  (S.  L.  A.,  1890,  s.  12). 

Sales,  exchanges,  and  partitions  must  be  made  for  the  best  prices 
{In  re  Earl  of  Wiltons  S.  E.,  fixing  by  arbitration ;  S.  L.  A.,  1890,  s.  18, 
sites  of  houses  for  working  classes;  In  reLlewellin,  1887,  37  Ch.  D.  317, 
price  of  timber)  or  the  best  considerations  in  land,  or  in  land  and  money 
respectively,  reasonably  obtainable  (S.  L.  A.,  1882,  s.  4  (1),  (2)),  subject 
to  modifications  if  the  sales  be  made  for  the  erection  of  workmen's 
dwellings  (53  &  54  Vict.  c.  73,  s.  74).  Sales  may  be  made  in  one  or 
more  lots,  by  auction  or  privately,  and  if  of  land  held  by  one  lease  and 
in  lots  by  sub-demise  {In  re  Jiuld  and  Poland  and  Skdcher's  Contract, 
[1906]  1  Ch.  684).  Reserve  biddings  and  buyings-in  at  auctions  are 
permitted  (S.  L.  A.,  1882,  s.  4  (3),  (4)),  as,  on  sales,  exchanges,  or  parti- 
tions, are  stipulations  respecting  title  or  evidence  of  title  or  other  things 
{ibid.  (5)),  or  any  restrictions,  or  reservations  with  respect  either  to 
building  on,  or  other  user  of  land,  or  to  mines  and  minerals,  or  to  the 
more  beneficial  working  thereof,  or  to  any  other  thing.  These  may  be 
made  binding  as  far  as  the  law  permits  by  covenant,  condition,  or  other- 
wise, on  the  donee  of  the  power  and  the  settled  land,  or  on  the  other 
party  and  any  land  parted  with  {ibid.  (6)).  Enfranchisements  may  be 
made  with  or  without  regrants  of  common  or  other  rights  or  reputed 
rights  {ibid.  (7)). 

On  a  sale  or  grant  for  building  purposes,  the  donee  of  the  powers 
has,  under  S.  L.  A.,  1882,  ss.  16,  55  (2),  some  special  powers  stated  below, 
p.  262. 

Of  conveyances,  see  below,  p.  265. 

Leasing  Generally. — The  donee  of  the  statutory  power  may  lease  the 
settled  land  or  any  part  thereof  (S.  L.  A.,  1882,  ss.  2  (2),  6),  except  such 
principal  mansion  and  land  held  therewith  as  are  above  described 
(p.  258) ;  to  leases  of  them  the  consent  of  the  trustees  or  of  the  Court 
is  required  {ibid.,  s.  15 ;  S.  L.  A.,  1890,  s.  10).  He  may  also  lease  any 
easement,  right,  or  privilege,  over  or  in  relation  to  the  demisable 
settled  land  (S.  L.  A.,  1882,  s.  6),  though  they  are  things  out  of  which 
no  rents  can  be  reserved  (Lord  Mansfield,  C.J.,  1757,  1  Burr.  124). 
He  may  lease  for  any  purpose,  whether  involving  waste  (see  Waste) 
or  not,  and  for  terms  not  exceeding  the  lengths  specified  for  building, 
mining,  and  other  leases  respectively  (S.  L.  A.,  1882,  s.  6).  As  to  the 
need  for  the  consent  of  trustees  or  for  their  existence,  see  Mogridge  v. 
Clapp,  [1892]  3  Ch.  382. 

Tiie  statutory  power  extends  to  the  making  of  leases — (1)  for  giving 
effect  to  a  contract  entered  into  by  any  of  the  donee's  predecessors  in 
title  for  making  a  lease,  which,  if  made  by  the  predecessor,  would  have 
been  binding  on  the  successors  in  title ;  (2)  for  giving  effect  to  a  covenant 
of  renewal,  performance  whereof  could  be  enforced  against  the  owner 
for  the  time  being  of  the  settled  land ;  and  (3)  for  confirming,  as  far  as 
may  be,  a  previous  lease,  being  void  or  voidable ;  but  so  as  that  every 
lease  as  and  when  confirmed,  shall  be  such  a  lease  as  might  at  the  date 
of  the  original  lease  have  been  lawfully  granted  under  the  Act  or  other- 
wise, as  the  case  may  require  (S.  L.  A.,  1882,  s.  12;  In  re  Kenveys-Tynte, 
[1892]  2  Ch.  211 ;  Hood  and  Challis,  6th  ed.,  225). 


260  SETTLED  LAND  ACTS  AND  POWEES 

'•■■''  Every  lease,  except  certain  occupation  leases  (see  below),  must  be 
by  deed,  and  must  take  effect  in  possession  not  later  than  twelve 
months  after  its  date  (S.  L.  A.,  1882,  s.  7  (1)).  In  conventional  powers 
the  phrase  "  take  effect  in  possession "  was  interpreted  strictly,  and 
though  a  demise  to  hold  from  the  day  of  the  date  does  {Pugh  v.  Duke  of 
Leeds,  1777,  Cowp.  714),  one  to  hold  from  the  day  after  the  date  does 
not  take  effect  in  possession  {Bowes  v.  East  London  Watenvorks,  1821, 
Jac.  324 ;  37  E.  R.  873 ;  23  R.  R  84). 

To  authorise  the  creation  of  terms  to  begin  at  a  future  time  would 
be  to  authorise  their  creation  in  circumstances  the  donee  cannot  judge 
of,  A  concurrent  lease,  one  beginning  presently,  but  subject  to  another 
lease,  is  open  to  the  further  objection  that  the  lessor  during  the  cur- 
rency of  both  leases  cannot  distrain. 

Every  lease  must  reserve  the  best  rent  that  can  reasonably  be 
obtained,  regard  being  had  to  any  fine  taken,  and  to  any  money  laid 
out  or  to  be  laid  out  for  the  benefit  of  the  settled  land,  and  generally 
to  the  circumstances  of  the  case  (S.  L.  A.,  1882,  s.  7  (2) ;  In  re  Handman 
and  Wilcox,  [1902]  1  Ch.  599).  A  fine  received  on  the  grant  of  a  lease 
under  this  power  is  capital  money  (S.  L.  A.,  1884,  s.  4 ;  S.  L.  A.,  1882, 
ss.  21-23,  25-30).  Moreover,  the  surrender  of  an  existing  lease  may  be 
accepted  as  consideration  for  the  creation  of  a  new  one  {Md.,  s.  13  (5)). 
As  to  ownerships  of  price  for  acceptance  of  a  surrender,  see  In  re  Hunlokes 
S.  E.,  [1902]  1  Ch.  941. 

In  so  far  as  this  power  applies  to  creation  of  occupation  leases,  it 
differs  from  that  usually  inserted  in  settlements,  and  that  given  to 
tenants  for  life  by  the  Settled  Estates  Act,  1877,  s.  46,  by  authorising 
the  permission  of  waste  and  the  acceptance  of  fines.  The  latter  powers 
ordinarily  prohibited  both,  though  occasionally  powers  authorising  both 
were  used.  The  capitalisation  of  fines  guards  the  power  to  accept  them 
from  abuse. 

The  best  rent  is  the  best  obtainable  when  the  lease  is  granted 
(Kay,  J.,  1887,  35  Ch.  D.  532).  In  conventional  powers  such  a  rent, 
where  it  was  the  only  benefit  secured  to  the  reversioner,  was  often 
called  "  rack  "  or  "  most  improved,"  and  the  words  "  that  can  reasonably 
be  obtained  "  only  express  correctly  what,  if  they  were  absent,  would  be 
implied  (Lord  Redesdale,  1821,  2  Brod.  &  B.  614 ;  3  Bli.  463 ;  4  E.  R.  669). 
Nor  does  "best"  imperatively  require  the  acceptance  of  the  highest 
rent  offered;  in  the  choice  of  a  tenant  there  are  other  things  to  be 
considered  {Doe  v.  Radcliffe,  1808,  10  East,  278).  Reasonable  care  anil 
diligence  is  required;  but  if  the  donee  of  the  powers  provides  for 
those  who  are  to  take  after  him  as  he  has  provided  for  himself, 
jn^ima  facie  the  lease  is  good  against  the  remaindermen  (Lord  Eldon» 
1819,  1  Bli.  428).  A  lower  rent  in  the  later  than  in  the  earlier  years 
of  the  term  is  therefore  objectionable  {Doe  v.  Harvey,  1823,  1  Barn. 
&  Cress.  426),  but  not  a  higher  one  (Chitty,  J.,  [1892]  3  Ch.  49).  So- 
also  the  rent  must  be  made  payable  throughout  the  term,  and  not, 
to  the  detriment  of  a  remainderman,  in  advance;  though  the  common 
precaution  of  making  the  final  payment  some  time  in  advance,  where 
to  do  so  may  be  beneficial  to  the  remainderman,  has  been  upheld 
{Rutland  v.  Wythe,  1843,  10  CI.  &  Fin.  419). 

Every  lease  shall  contain  a  covenant,  or  if  for  a  term  not  exceeding 
three  years  from  its  date,  a  contract,  for  payment  of  the  rent,  and 
every  lease  for  more  than  three  years  a  condition  of  re-entry  on  the 
rent  not  being  paid  within  a  time  therein  specified,  not  exceeding  thirty 


SETTLED  LAND  ACTS  AND  POWERS  261 

clays  (S.  L.  A,  1882,  s.  7  (3);  S.  L.  A.,  1890,  s.  7  (3)).  A  counterpart 
must  be  executed  by  the  lessee  and  delivered  to  the  tenant  for  life ;  of 
that  execution  and  delivery,  the  execution  of  the  lease  by  the  donee 
of  the  power  shall  be  sufficient  evidence  (S.  L.  A.,  1882,  s.  7  (4)) ;  and 
a  statement  in  a  lease,  or  in  an  indorsement  thereon,  signed  by  the 
tenant  for  life,  respecting  any  matter  of  fact  or  of  calculation,  under 
this  Act,  in  relation  to  the  lease,  shall,  in  favour  of  the  lessee  and  of 
those  claiming  under  him,  be  sufficient  evidence  of  the  matter  stated 
{ihid.  (5)). 

Neither  notice  to  the  trustees  of  the  settlement,  nor  the  existence 
of  such  trustees,  is  essential  to  the  creation  of  certain  occupation  leases 
(see  below,  p.  264). 

The  conventional  powers  often  expressly  required,  and  probably,  if 
they  did  not,  they  implied,  as  it  is  conceived  the  statutory  powers  imply, 
that  the  rent  should  be,  as  it  may  be  {Harcourt  v.  Pole,  1591,  1  And. 
273),  incident  to  the  reversion,  and  enure  to  the  benefit  both  of  the  tenant 
for  life,  who  creates  it,  and  to  that  of  the  remainderman  also.  The 
lessees  and  remaindermen  both  derive  their  estate  out  of  the  original 
inheritance  of  the  settlor  (Butler,  note  to  Co.  Litt.  214a).  It  may  be 
reserved  to  the  appointor  and  those  who  shall  after  his  death  be  entitled 
to  the  reversion  {Harcourt  v.  Pole,  n.s.),  or  to  the  appointor,  his  heirs 
and  assigns  (Berry  v.  White,  1586,  Bridg.  by  Ban.  82,  103  ;  Greenaway 
V.  Hart,  1854,  14  C.  B.  340.  Concerning  Ydlmvly  v.  Gower,  1855,  11  Ex. 
274,  see  Sug.  Pow.,  8th  ed.,  814).  The  most  sure  way  is  to  reserve  it 
simply,  without  saying  to  whom  ;  the  law  will  make  distribution  ( Whit- 
loch's  Case,  1608,  8  Rep.  696,  71a;  77  E.  R.  580;  see  also,  now,  44  &  45 
Vict.  c.  41,  s.  58). 

If  there  were  not  a  covenant  for  payment  of  rent,  all  means  of 
recovering  the  rent  might  be  defeated  by  the  assignment  of  the  lease 
to  a  beggar ;  if  there'  were  no  clause  of  re-entry,  the  land  might  lie 
unoccupied  (Lord  Mansfield,  C.J.,  1757,  1  Burr.  125);  if  there  were  no 
counterpart,  the  lessor  would  lack  the  best  evidence  of  the  contract. 
Either  the  omission  of  proper  covenants  or  the  insertion  of  improper 
ones  might  lessen  the  value  of  the  reversion  and  vitiate  the  lease  (Doug. 
Rep.  553;  Cardigan  v.  Montague,  1754,  Sag.  Poiv.,  8th  ed.  918,  921; 
Doe  V.  Sandham,  1787,  1  T.  R.  705).  Some  conventional  powers  require 
the  insertion  of  "usual"  covenants.  Where  the  leases  were  to  be  of 
land  "  usually  letten  "  at  "  accustomed  rents,"  the  former  leases  showed 
what  were  "  usual "  covenants  {Cardigan  v.  Montague,  w.s.) ;  but  where 
the  leases  are  to  be  at  rack  rent,  "usual  covenants"  are  those  usual 
at  the  date  of  the  lease  (3  Dav.  Conv.,  3rd  ed.  502n.). 

Twenty-one  days  is  perhaps  the  number  of  days  most  frequently 
specified  as  the  period  within  which  the  rent  must  be  paid  in  order  to 
preclude  the  right  of  re-entry ;  and  where  in  provisos  inserted  in  leases 
made  under  powers  which  required  that  a  reasonable  number  of  days 
should  be  specified,  periods  varying  from  fifteen  to  forty-two  days  have 
been  held  to  be  reasonable  {Doe  v.  Smith,  1821, 3  Bli.  290 ;  Jones  v.  Verney, 
1739,  Willes,  169, 172 ;  Best,  J.,  3  Bli.  331;  Lord  Eldon,  C,  443 ;  4  E.  R. 
624,  662).  A  reasonable  qualification  of  the  power,  such  as  the  want  of 
a  sufficient  distress  {Doe  v.  Smith,  u.s.),  or  the  insertion,  with  reference  to 
non-payment  of  rent,  of  the  words  "  being  first  lawfully  demanded " 
{Doe  V.  Wilson,  1822,  5  Barn.  &  Aid.  363),  may  be  used,  though  in  modern 
practice  the  words  are  generally  omitted. 

It  may  be  useful,  if  practicable,  for  a  lessee  by  appointment  under 


262  SETTLED  LAND  ACTS  AND  POWERS 

a  conventional  power,  which  does  not  provide  for  the  point  as  S.  L.  A., 
1882,  s.  7  (4),  does,  to  procure  the  indorsement  on  his  lease,  by  the 
appointor,  of  an  acknowledgment  of  the  execution  of  the  counterpart. 

Formal  defects  in  the  exercise  of  powers  of  leasing  afforded  many 
subjects  of  the  jurisdiction  to  supply  defects  assumed  by  the  Court  of 
Chancery  (Sug.  Pow.,  8th  ed.,  567, 568 ;  see  Powers).  In  those  cases  the 
objections  to  the  jurisdiction  practically  failed,  and  the  reasons  for  its 
exercise  were  stronger  than  in  the  cases  of  some  other  powers.  Indeed, 
they  were  of  such  force  that  the  legislature  interfered  to  support  leases 
purporting  to  be  made  under  powers,  but  defective  in  form,  and  contracts 
for  leases  by  persons  who  only,  after  entering  into  the  contracts,  became 
entitled  to  perform  them  (12  &  13  Vict.  c.  26,  ss.  1,  2,  4;  S.  L.  A.,  1882, 
s.  12,  above).  Moreover,  a  lease,  invalid  by  reason  of  the  non-observance 
or  omission  of  some  condition  or  restriction,  or  by  reason  of  any  other 
deviation  from  the  terms  of  the  power,  if  made  hond  fide,  may  be  treated 
by  the  lessee  as  a  contract  for  a  valid  lease  like  the  invalid  one,  but  so 
varied  as  to  comply  with  the  power,  or  if  the  persons  who  would  be 
bound  by  such  contract  so  will,  without  variation  {ibid.,  s.  2).  Leases 
invalid  when  granted,  may  become  valid  by  the  grantor's  continuance  in 
ownership  until  a  time  when  he  can  grant  such  a  lease  (12  &  13  Vict. 
c.  26,  s.  4).  A  lease  which  might  have  been  made  in  exercise  of  a  power 
is  deemed  to  have  been  granted  in  exercise  of  it  {ibid.,  s.  5).  The  con- 
ventional rights  of  the  parties  are  not  taken  away  {ibid.,  s.  6).  Accept- 
ance by  receipt  in  writing  of  rent,  paid  under  an  invalid  lease,  confirms 
it  as  against  that  acceptor  (13  &  14  Vict.  c.  17,  s.  2) ;  and  the  lessee 
under  an  invalid  lease  which  the  reversioner  is  willing  to  and  can  confirm, 
is  bound  to  accept  such  a  confirmation  {ibid.,  s.  3). 

A  lease  for  a  longer  term  than  the  power  authorises  may  be  good  for 
so  much  of  the  term  granted  as  the  power  does  authorise  (Clarke,  M.R., 
2  Ves.  644;  28  E.  R.  410;  Campbell  v.  Leach,  1775,  Ambler  bv  Blunt, 
740 ;  27  E.  R.  478 ;  Sug.  Pow.,  8th  ed.,  519). 

The  S.  L.  A.,  1882,  expressly  authorises  a  tenant  for  life  to  contract 
and  to  accept  the  surrender  of  a  contract,  to  make  a  lease  in  conformity 
with  the  Act  (s.  31  (1),  iii.  iv.  vi.).  Every  contract  is  binding  on  the 
successors  of  the  tenant  for  life  {ibid.  (2)). 

Building  Leases. — A  building  lease  (S.  L.  A.,  1882,  s.  2  (10),  iii.)  may 
be  made  for  any  term  not  exceeding  ninety-nine  years  {ibid.,  s.  6) ;  or  in 
specified  cases  and  with  the  sanction  of  the  Court,  for  longer  terms,  or 
even  in  perpetuity  {ihid.,  s.  10 ;  S.  L.  A.,  1890,  s.  9).  The  reservation  of 
the  best  rent  above  described  (S.  L.  A.,  1882,  s.  6  (2))  is  requisite;  but 
the  lease  must  be  made  partly  in  consideration  of  the  lessee,  or  some 
person  by  whose  direction  the  lease  is  granted,  or  some  other  person, 
having  erected,  or  agreeing  to  erect,  buildings,  new  or  additional,  or 
having  improved  or  repaired,  or  agreeing  to  improve  or  repair,  buildings, 
or  having  executed,  or  agreeing  to  execute,  on  the  land  leased  an  improve- 
ment authorised  by  the  Act  (see  ibid.,  ss.  25,  30)  for  or  in  connection  with 
building  purposes  {ibid.,  s.  8  (1);  Ln  reChawner,  [1892]  2  Ch.  192;  In  re 
Daniell,  [1894]  3  Ch.  503).  If  the  lease  be  made  for  the  purpose  of  the 
erection  on  the  land  of  dwellings  for  the  working  classes,  the  rent  may 
be  such  as,  having  regard  to  that  purpose  and  all  the  circumstances, 
is  the  best  that  can  be  reasonably  obtained  (53  &  54  Vict.  c.  70,  s.  74 ; 
S.  L.  A.,  1890,  s.  18). 

During  at  most  the  first  five  years  a  nominal  rent,  or  one  less  than 
that  ultimately  payable,  may  be  reserved  (S.  L.  A.,  1882,  s.  8  (2));  and 


SETTLED  LAND  ACTS  AND  POWERS  263 

where  the  land  is  contracted  to  be  leased  in  lots,  the  entire  amount  of 
rent  to  be  ultimately  payable  may  be  apportioned  {ibid.  (3)),  but  (i.) 
every  annual  rent  must  be  at  least  ten  shillings ;  (ii.)  the  total  amount 
of  rents  reserved  on  all  leases  for  the  time  being  granted  shall  not  be 
less  than  the  total  amount  of  rents  which,  in  order  that  the  leases  may 
be  in  conformity  with  the  Act,  ought  to  be  reserved  in  respect  of  the 
whole  land  for  the  time  being  leased,  and  (iii.)  the  rent  reserved  by  any 
lease  shall  not  exceed  one-fifth  part  of  the  full  annual  value  of  the  land 
comprised  in  that  lease,  with  the  buildings  thereon  when  completed 
(Hood  and  Challis,  6th  ed.,  220).  Where  the  Court  sanctions  grants  in 
fee  for  building  purposes,  it  can  authorise  the  creation  of  fee-farm  or 
other  rents  {iUd.,  s.  10  (1)). 

A  building  lease,  or  an  agreement  for  granting  building  leases,  made 
under  these  Acts,  may  contain  an  option,  to  be  exercised  at  any  time 
within  an  agreed  number  of  years,  not  exceeding  ten,  for  the  lessee  to 
purchase  the  land  leased  at  a  price  fixed  at  the  time  of  making  the 
lease  or  agreement,  such  price  to  be  the  best  which,  having  regard  to 
the  rent  reserved,  can  reasonably  be  obtained,  and  to  be  either  a  fixed 
sum  of  money  or  such  a  sum  of  money  as  shall  be  equal  to  a  stated 
number  of  years'  purchase  of  the  highest  rent  reserved  by  the  lease  or 
agreement  (S.  L.  A.,  1889,  s.  2).  The  price  when  received  is  capital 
money  (s.  3).  See  Vendor  and  Purchaser;  Option  to  Purchase 
{Raffety  v.  Schofield,  [1897]  1  Ch.  937;  Friary,  etc.,  Breweries,  [1899] 
2  Ch.  261). 

On  a  sale,  grant,  or  lease  for  building  purposes,  and  for  the  general 
benefit  of  the  residents  on  all  or  part  of  the  settled  land,  the  donee  of 
the  powers  may  cause  land  to  be  appropriated  and  laid  out  for  streets, 
roads,  paths,  squares,  gardens,  or  other  open  spaces,  for  the  use,  gratuit- 
ously or  on  payment,  of  the  public  or  of  individuals,  with  necessary  or 
proper  sewers,  drains,  watercourses,  fencing,  paving,  or  other  works; 
may  provide  for  the  vesting  of  the  appropriated  parts  in  trustees  or  any 
company  or  public  body,  on  trust  for  securing  the  continued  appropria- 
tion and  repair  or  maintenance  of  the  streets  and  other  places  and 
works,  with  or  without  provision  for  the  appointment  of  new  trustees 
when  required ;  and  may  execute  deeds,  which  may  be  enrolled  in  the 
Central  Office  of  the  Supreme  Court,  to  give  effect  to  these  provisions, 
and  declare  the  mode,  terms,  and  conditions  of  the  appropriation,  and 
the  manner  in  which  and  the  persons  by  whom  the  benefit  thereof  is  to 
be  enjoyed,  and  the  extent  of  the  privileges  and  conveniences  granted 
(S.  L.  A.,  1882,  s.  16;  see  also  s.  55). 

Mining  Leases. — In  the  case  of  a  mining  lease  (S.  L.  A.,  1882,  s.  2(10), 
iv.),  a  tenant  for  life  can  demise  for  sixty  years  (ibid.,  s.  6,  ii.),  and  at 
a  rent  ascertainable  by  or  varying  according  to  acreage  worked  or 
quantities  obtained  or  disposed  of  from  the  settled  or  other  land,  or 
by  or  according  to  facilities  given  in  that  behalf  (ibid.,  s.  9  (1)),  or 
according  to  the  price  of  the  substances  gotten,  ascertained  as  in  the 
Act  is  specified  (S.  L.  A.,  1890,  s.  8).  A  minimum  rent  may  be  made 
payable,  and  the  lessee  may  be  empowered  to  make  up  in  subsequent 
periods  deficiencies  in  prior  ones(S.  L.  A.,  1882,  s.  9  (1)  ii. ;  In  re  Aldam, 
[1902]  2  Ch.  46).  Improvements  authorised  by  the  Act  {ibid.,  s.  25), 
made  or  agreed  to  be  made  by  the  proposed  lessee,  may  constitute  part 
of  the  consideration  for  the  lease  {ibid.,  s.  9  (2)).  Moreover,  the  Court, 
in  certain  cases,  may  authorise  demises  or  grants  for  longer  terms,  or  in 
perpetuity,  or  on  other  conditions  than  those  specified  {ibid.,  s.  10). 


264  SETTLED  LAND  ACTS  AND  POWERS 

Unless  a  contrary  intention  is  expressed  in  the  settlement  (In  re  Duke 
of  Newcastle,  1883,  24  Ch.  D.  129, 143),  there  shall  be  set  aside  as  capital 
money  arising  under  the  Act,  where  the  tenant  for  life  is  impeachable 
for  waste,  in  respect  of  minerals,  three-fourths,  and  if  he  is  not  so 
impeachable,  one-fourth  of  the  rent  (In  re  Chaytor,  [1900]  2  Ch.  804). 
The  rest  goes  as  rents  and  profits  {ibid.,  s.  11).  It  should  be  noted  that 
a  tenant  impeachable  of  waste  may  work  opened  mines  {Saunders's  Case, 
5  Kep.  12a;  Viner  v.  Vaughan,  1840,  2  Beav.  466;  48  E.  R.  1262;  50 
E.  R.  245). 

Occupation  Leases. — Statutory  powers  to  make  occupation  leases  were 
conferred  on  some  owners  of  particular  estates  in  1540  (England),  1634 
(Ireland),  1834  (England),  and  1835  (Ireland),  (32  Hen.  viii.  c.  28; 
10  Car.  I.  Sess.  3,  c.  6  ;  3  &  4  Will.  iv.  c.  74,  s.  41 ;  4  &  5  Will.  iv.  c.  92, 
s.  39),  and  they,  as  well  as  the  powers  of  leasing  given  by  the  Leases 
and  Sales  of  Settled  Estates  Act,  1856,  19  &  20  Vict.  c.  120,  ss.  32,  33, 
superseded  by  the  Settled  Estates  Act,  1877,  ss.  46-48,  and  the  powers 
of  leasing  usually  inserted  in  settlements  until  1883  had  anticipated 
the  principle,  used  with  reference  to  the  like  powers,  and  extended  to 
administrative  powers  generally  by  the  Settled  Land  Acts,  of  conferring 
leasing  powers  on  tenants  for  life.  Of  the  above-mentioned  statutory 
powers,  those  of  1834,  1835,  and  1877  still  remain  in  force,  but  the 
powers  now  of  chief  importance  are  those  to  be  found  in  almost  all 
settlements  made  before,  and  in  some  made  after,  1883,  and  in  the 
Settled  Land  Acts. 

The  donees  of  the  powers  conferred  by  those  Acts  can  make  leases, 
other  than  building  or  mining  leases,  of  land  in  England  for  terms  not 
exceeding  twenty-one  years,  and  of  land  in  Ireland  for  terms  not 
exceeding  thirty-five  years.  If  made  for  a  term  not  exceeding  twenty- 
one  years,  without  fine,  at  the  best  rent  reasonably  obtainable,  and 
without  exempting  the  lessee  from  punishment  for  waste,  neither  notice 
to  the  trustees  of  the  settlement,  nor  the  existence  of  such  trustees,  is 
necessary  to  the  validity  of  the  lease.  It  may  be  made  by  writing  only 
where  the  term  does  not  extend  beyond  three  years  from  the  date  of 
the  writing  (S.  L.  A.,  1882,  ss.  6,  65 ;  S.  L.  A.,  1890,  s.  7). 

A  century  and  a  half  ago  two  methods  of  making  occupation  leases 
were  in  common  use — at  the  best  rent,  and  upon  fines  (Lord  Mansfield, 
C.J.,  1757;  1  Burr.  121).  The  fines  were  accounted  yearly  profits 
{Brigstocke  v.  Brigstocke,  1878,  8  Ch.  D.  357) ;  the  land  authorised  by 
settlements  to  be  so  demised  was  often  described  as  that  "  usually 
letten ; "  the  rent  to  be  "  ancient "  or  "  accustomed,"  and  the  terms 
twenty-one  years  absolute,  or  determinable  with  three  lives,  or  three 
lives  absolutely.     The  latter  practice  is  now  rare,  if  not  obsolete. 

Power  to  accept  Surrenders. — A  donee  of  the  Settled  Land  Acts'  powers 
has  a  very  wide  one  to  accept,  with  or  without  consideration  surrenders 
of  leases  (S.  L.  A.,  1882,  s.  13).  In  making  a  new  lease  "  the  value  of 
the  lessee's  interest  in  the  lease  surrendered  may  be  taken  into  account " 
as  part  of  the  consideration  {ibid.,  subs.  (5)). 

Power  to  License  Copyholders  to  Demise. — A  donee  of  the  Settled 
Land  Acts'  powers  may  grant  to  the  copyhold  or  customary  tenants 
of  manors  comprised  in  the  settlement,  licence  to  make  any  such  lease 
of  land  they  hold  as  that  donee  is  by  the  Acts  empowered  to  make  of 
freehold  land.  The  licencer  may  fix  the  annual  value  whereon  fines, 
fees,  or  other  customary  payments  are  to  be  assessed,  or  the  amount  of 
those  fines,  fees,  or  payments ;  the  licence  shall  be  entered  on  the  Court 


SETTLED  LAND  ACTS  AND  POWEKS  265 

rolls,  and  a  written  certificate  by  the  steward  is  sufficient  evidence  of 
that  entry  (S.  L.  A.,  1882,  s.  14). 

Power  to  Borrovj  on  Mortgage. — Money  required  {In  re  Clifford,  [1902] 
1  Ch.  87)  for  enfranchisement  {ibid.,  s.  21,  v. ;  In  re  Bruce,  [1905]  2  Ch. 
372),  for  equality  of  exchange  or  partition  {ihid.,  s.  3,  iii.  iv.,  s.  21,  iv.), 
or  for  discharging  an  incumbrance,  other  than  annuities  for  lives  or 
years,  and  the  proper  costs  of  the  transaction,  may  be  raised  by  the 
donee  of  the  power  by  conveyance  of  the  fee  simple  or  other  estate  or 
interest  settled,  or  of  a  term  of  years  therein  or  otherwise,  and  the 
money  raised  is  capital  money  arising  under  the  Act  {ihid.,  s.  18 ; 
S.  L.  A.,  1890,  B.  11;  In  re  Monson,  [1898]  1  Ch.  427,  compound  settlement; 
In  re  Smith,  [1901]  1  Ch.  689). 

Powers  Exercisable  with  Consent  only.  —  With  the  consent  of  the 
trustees  of  the  settlement,  or  the  Court,  the  donee  of  the  powers  can 
sell  or  lease  the  principal  mansion  and  demesnes  (S.  L.  A.,  1890,  s.  10); 
though  impeachable  for  waste  in  respect  of  timber,  he  can  cut  and  sell 
timber  ripe  and  fit  for  cutting,  three-fourths  of  the  proceeds  being 
capital,  and  one-fourth  rents  and  profits  (S.  L.  A.,  1882,  s.  35) ;  see  also 
sec.  29  as  to  use  of  timber  for  repair  {Dashwoodv.  Magniac,  [1891]  3  Ch. 
306);  and  by  leave  of  the  Court  he  may  bring  and  defend  actions, 
and  petition  Parliament  for,  or  oppose.  Bills  for  the  benefit  of  the 
settlement  at  the  cost  of  the  property  {ihid.,  s.  36) ;  and  may  sell  heir- 
looms, the  proceeds  being  capital  money  {ihid.,  s.  37).  Chattels  may  be 
purchased  with  the  price  {ihid.). 

Conveyances  in  Exercise  of  Powers. — On  a  sale,  exchange,  partition, 
lease,  mortgage,  or  charge,  the  donee  of  the  power  may  convey  the  land, 
or  create  the  rights  by  deed  for  the  estate  or  interest,  the  subject  of 
the  settlement,  or  for  any  less  estate  or  interest,  to  the  uses  and  in  the 
manner  requisite  (S.  L.  A.,  1882,  s.  20  (1)).  The  deed  passes  the  land 
discharged  from  the  limitations,  powers,  and  provisions  of  the  settle- 
ment, and  from  all  estates,  interests,  and  charges  subsisting  or  to  arise 
thereunder,  but  not  from  estates,  interests,  and  charges  having  priority 
to  the  settlement,  or  conveyed  or  created  for  securing  money  actually 
raised  at  the  date  of  the  deed,  or  leases  or  grants  more  particularly 
specified  in  the  section,  made  or  agreed  to  be  made  for  value  before 
the  date  of  the  deed  by  either  the  tenant  for  life  or  any  of  his  pre- 
decessors in  title,  or  by  any  trustees  for  him  or  them,  and  binding  on 
his  successors  in  title  {iUd.  (2) ;  In  re  Marquis  of  Aileshiry  and  Lord 
Iveagh,  [1893]  2  Ch.  345 ;  In  re  Mundy  and  Roper,  [1899]  1  Ch.  275). 
In  the  case  of  copyhold  and  customary  land,  entry  on  the  Court  rolls, 
admittance  and  payment  of  fines,  is  provided  for  {ihid.  (3);  see  also 
S.  L.  A.,  1890,  s.  6). 

Capital  Money. — Capital  money  arising  under  the  Act  and  receivable 
for  the  trusts  and  purposes  of  the  settlement  (S.  L.  A.,  1882,  s.  2  (9)), 
besides,  of  course,  the  price  for  which  sales  are  made,  and  money  received 
for  equality  of  exchange  or  partition,  and  gross  sums  paid  for  dedication 
of  streets,  etc.  (s.  16),  includes  parts  of  mining  rents  (s.  11),  and  of  the 
produce  of  timber  cut  under  sec.  35,  the  proceeds  of  sale  of  heir- 
looms (s.  37),  fines  on  leases  (S.  L.  A.,  1884,  s.  4),  and  tlie  price  of 
land  sold  pursuant  to  options  to  purchase  (S.  L.  A.,  1889,  s.  3),  money 
produced  by  conversion  of  investments  of  capital  money  (S.  L.  A.,  1882, 
s.  22  (7)),  money  in  Court  under  other  Acts  or  in  the  hands  of  trustees, 
and  liable  to  be  invested  in  the  purchase  of  land  and  settled  {ihid., 
ss.  32,  33).     Such  capital  money  is  payable  to  the  trustees  or  into  Court, 


266  SETTLED  LAND  ACTS  AND  POWEES 

at  the  option  of  the  donee  of  the  power,  and  invested  or  applied  by  the 
trustees  or  the  Court  accordingly  {ibid.,  s.  22) ;  and  if  paid  into  Court 
may,  if  the  Court  thinks  fit,  be  again  paid  out  to  the  trustees  (S.  L.  A., 
1890,  s.  14).  Subject  to  payment  of  claims  properly  payable  thereout 
(57  &  58  Vict.  c.  30,  s.  9,  estate  duty;  In  re  Hacket,  [1907]  1  Ch.  385), 
and  to  application  thereof  for  any  special  authorised  object  for  which 
the  capital  money  was  raised,  it  is,  when  received,  applicable  in  the 
modes  following,  namely: — 

i.  Certain  investments  (see  Trusts),  ii.  Discharge  of  incumbrances 
affecting  the  inheritance  and  land  tax  and  tithe  rent-charge  (see  S.  L.  A., 
1887,  s.  1  ;  /»  re  Duke  of  Marlborough's  Settlement,  [1886]  32  Ch.  1).  I ;  In  re 
Lord  Stafford,  [1904]  2  Ch.  72,  proceeds  of  sale  of  chattels),  iii.  In 
payment  for  any  improvements  authorised  by  the  Act,  being  such  as 
are  described  at  length  in  the  Settled  Land  Act,  1882,  s.  25 ;  the 
Agricultural  Holdings  (England)  Act,  1883,  s.  29;  ibid.,  1900,  s.  1; 
ibid.,  1906,  s.  1 ;  Settled  Land  Act,  1887 ;  Settled  Land  Act,  1890, 
s.  13;  and  in  the  Housing  of  the  Working  Classes  Act,  1890,  s.  746. 
iv.  In  payment  for  equality  of  exchange  or  partition,  v.-viii.  In  purchase  of 
land,  and  various  estates  and  interests  therein  (see  S.  L.  A.,  1882,  s.  23). 
ix.  In  payment  to  persons  absolutely  entitled  or  empowered  to  give  a  dis- 
charge. X.  In  payment  of  costs,  charges,  and  expenses  of  exercising  the 
powers  or  executing  the  provisions  of  the  Act.  xi.  And  in  any  other  mode 
in  which  money  produced  by  the  exercise  of  a  power  of  sale  in  the  settlement 
is  applicable  thereunder  (S.  L.  A.,  1882,  s.  21). 

The  trustees  must  invest  or  apply  the  capital  money  according  to 
the  direction  of  the  donee  of  (In  re  Duke  of  Cleveland's  S.  E.,  [1902] 
2  Ch.  350 ;  In  re  Eotham,  [1902]  2  Ch.  575)  the  power,  and  in  default 
thereof,  at  their  discretion,  subject  to  any  directions  in  the  settlement 
(S.  L.  A.,  1882,  s.  22  (2)).  The  Court  may  give  its  direction,  on  the 
application  of  the  donee  of  the  power,  or  of  the  trustees  {ibid.  (3)).  To 
the  alteration  of  any  investment,  or  other  application,  the  consent  of 
the  donee  of  the  power,  if  living,  is  necessary  {ibid.  (4)).  Capital 
money  and  investments  of  it  are  considered  as  settled  land,  and  devolve 
accordingly  {ibid.  (5),  (6)).  If  the  money  is  the  price  of  terminable  or 
reversionary  property,  tlie  interests  in  the  capital  money  correspond 
with  those  on  property  sold  {ibid.,  s.  34).  Land  acquired  is  to  be 
settled  {ibid.,  s.  24). 

When  improvements  are  proposed,  the  donee  of  the  powers  submits 
to  the  trustees  or  the  Court  a  scheme  for  approval,  and  if  approved,  it 
may  be  carried  into  effect,  with  precautions  prescribed  by  the  Acts 
{ibid.,  s.  26).  The  Court  can  even  authorise  payment  for  improvements 
made  without  the  submission  of  a  scheme  (S.  L.  A.,  1890,  s.  15).  The 
tenant  for  life  may  concur  with  other  persons  in  making  any  improve- 
ments (S.  L.  A.,  1882,  s.  27),  and  their  maintenance  and  fire  insurance  is 
provided  for  {ibid.,  ss.  28-30).  In  sees.  26,  28,  and  30,  and  in  sees.  48 
and  49,  the  words  relating  to  the  Land  Commissioners,  must  now  be  read 
with  the  substitution  for  that  body  of  the  Board  of  Agriculture ;  52  & 
53  Vict.  c.  30.  The  operation  of  the  authority  (S.  L.  A.,  1882,  s.  21,  ii.) 
to  apply  capital  money  in  the  discharge  of  incumbrances  where  the 
settlement  itself  authorises  or  directs  the  trustees  to  receive  and  accumu- 
late income  in  order  to  obtain  a  fund  to  be  applied  in' that  discharge  has 
been  considered  {In  re  Bichardson,  [1900]  2  Ch.  778 ;  In  re  Baroness 
Llanover,  [1907]  1  Ch.  635  ;  see  also  In  re  Bartington,  [1902]  1  Ch.  711 ; 
In  re  Heathcote,  [1904]  1  Ch.  826). 


SETTLED  LAND  ACTS  AND  POWEKS  267 

Court,  Procedure,  and  Ireland. — The  Act  of  1882  contains  provisions 
relating  to  applications  to  and  orders  by  the  Court  (s.  46 ;  see  S.  L.  A. 
Eules,  1882,  with  Appendix  of  Forms).  With  reference  to  Ireland,  see 
s.  65 ;  and  to  Durham,  52  &  53  Vict.  c.  47,  s.  10 ;  In  re  Ailesbury  S.  E., 
1893,  42  W.  E.  45 ;  as  to  costs,  see  references  in  Hood  and  Challis, 
th    ed..  Index,  Costs  under  S.  L.  A. 

Non-Statutory  Powers. — The  following  powers,  which  are  fre- 
quently needed  in  settlements  of  land,  are  not  conferred  by  statute. 
They  are — General  powers  of  appointment ;  and  powers  to  jointure ;  to 
charge  money  for  portions ;  to  appoint  that  money  among  the  portionists ; 
and  to  charge  for  the  benefit  of  the  donee  of  the  powers. 

General  Powers  of  Appointment. — Such  a  power,  if  made  capable  of 
exercise  during  the  currency  of  the  settlement,  and  in  priority  to  its 
limitations,  puts  such  of  those  limitations  as  create  estates  or  interests, 
which  at  the  time  of  such  exercise  are  in  possession  or  expectancy,  at 
the  mercy  of  the  donee  of  the  power ;  while  if  the  power  is  made  to 
operate  only  subject  to  the  limitations  of  the  settlement,  and  is  given, 
as  in  such  a  case  it  usually  is,  to  the  person  entitled  to  the  ultimate 
remainder  in  fee,  it  is  useless,  unless  the  ultimate  remainder  be  limited 
to  a  woman,  and  the  power  if  and  while  she  shall  be  married  be  made 
exercisable  by  will  only. 

In  the  latter  of  these  two  forms  a  general  power,  while  almost 
universally  used  in  the  settlement  of  a  woman's  personal  property,  is 
not  very  frequently  found  in  settlements  of  land.  In  the  form  of  a 
power  competent  to  defeat  the  settlement,  by  the  substitution  for  its 
limitations  of  such  others  as  the  donee  may  think  fit  to  appoint,  it  is 
very  often  used,  and  especially  in  what  are  called  family  settlements,  in 
which  the  tenant  for  life  in  possession  and  the  first  remainderman  in 
tail  concur  in  putting  an  end  to  the  settlement  from  which  they  derive 
their  estates,  and  to  resettle  the  land.  They  are  at  the  moment  joint 
masters  of  the  fee,  and  though  they  are  willing  and  presumably  desirous 
that  a  destination  by  way  of  settlement  shall  be  reimposed  on  the 
property  which  cannot  be  varied  except  by  their  joint  act,  they  also 
choose  to  retain  their  own  absolute  power.  That  object  is  attained  by 
giving  them  a  joint  general  power  of  appointment.  The  need  of  each 
concurring  with  the  other  is  some  check  on  any  disposition  to  abuse  the 
power,  which  is  itself  of  the  greatest  value  for  the  purpose  of  facilitat- 
ing dealings  with  the  land,  though  it  also  exposes  the  property  to  the 
risk  of  waste. 

Powers  to  Appoint  to  Issue. — According  to  a  practice  which,  at  one 
time,  was  occasionally  followed,  but  is  now  obsolete,  land  settled  on 
marriage  was  limited,  after  the  deaths  of  the  intended  husband  and 
wife,  or  of  one  of  them,  to  such  of  their  children,  or  of  their  issue,  as  the 
intended  husband,  if  he  was  the  settlor,  should  appoint,  and  in  default 
of  appointment,  to  the  use  of  the  children  equally  in  tail-male  or  in  fee. 
The  objects  aimed  at  by  that  mode  of  settlement  can  be,  and  now  are, 
much  more  conveniently  accomplished  by  a  conveyance  upon  trust  for 
sale  with,  while  the  parent  lives,  his  consent,  and  a  settlement  of  the 
money  to  be  produced  by  sale  upon  the  trusts  used  in  settlements  of 
personalty  (see  Settlements). 

Powers  to  Jointure. — Such  a  power  enables  a  tenant  for  life  to  charge 
land  with  a  yearly  rent-charge  for  the  maintenance  of  his  wife,  if  she 
shall  survive  him.  It  is  frequently  inserted  in  settlements  of  two 
kinds.    The  first  is  a  settlement  of  land  made  by  an  intended  husband 


268  SETTLED  LAND  ACTS  AND  POWERS 

on  his  marriage,  if  what  he  then  settles  leaves  him  no  fund  sufficient,  in 
the  event  of  his  surviving  his  then  intended  wife  and  marrying  again, 
to  make  a  provision  for  his  second  wife  in  case  of  and  upon  her  becom- 
ing his  widow.  In  such  a  case  the  settlor  limits  a  jointure  rent-charge 
to  his  then  intended  wife,  if  she  shall  survive  him  (see  Husband  and 
Wife  ;  Settlements),  and  reserves  to  himself  power,  if  he  shall  survive 
his  then  intended  wife,  and  if  and  so  often  thereafter  as  he  shall  marry 
any  other  woman,  and  either  before  or  after  such  marriage,  and  by  deed 
or  will,  and  subject  to  any  limitations  in  the  original  settlement,  of 
which  it  may  be  expedient  to  expressly  preserve  the  priority,  to  appoint, 
for  the  benefit  of  any  and  every  such  future  wife  who  may  survive  him, 
a  yearly  rent-charge,  or  yearly  rent-charges,  not  exceeding  a  specified 
sum,  clear  of  charges  except  income  tax  and,  if  wished,  the  death  duties 
— succession  as  well  as  estate  duty — may  be  payable,  and  either  being 
or  not  being  for  her  jointure,  and  in  bar  of  dower.  The  power  should 
authorise  the  donee  to  give  to  the  jointress  the  powers  of  distress,  entry, 
and  perception  of  rents  and  profits  which  are  given  to  the  owners  of 
rent-charges  by  the  Conveyancing  and  Law  of  Property  Act,  1881, 
s.  44.  In  that  section,  however,  "the  instrument  under  which  the 
annual  sum  arises "  may  mean  the  appointment  in  exercise  of  the 
power. 

Such  a  power  is  not  one  usual  in  marriage  settlements,  in  the  sense 
in  which  "  usual "  is  used  of  "  powers,"  to  be  inserted  in  a  settlement 
for  which  marriage  articles  are  entered  into  {Duke  of  Bedford  v.  Ahercorn, 
1836,  1  Myl.  &  (Jr.  312);  but  it  is  one  which,  on  preparing  a  marriage 
settlement,  the  advisers  of  the  settlor  should  suggest  to  him  for  his 
consideration. 

An  analogous  power  may  be  reserved  by  a  female  settlor  on  her 
marriage,  to  be  exercised  if  she  survive  her  husband  and  marry  again 
(3  Dav.  Conv.,  3rd  ed.,  1201). 

Another  class  of  settlements  in  which  powers  to  jointure  are  usually 
inserted  are  family  settlements  (see  Settlements),  and  indeed  any  in 
which  a  series  of  estates  for  life  with  remainders  to  issue  of  the 
successive  tenants  for  life  are  limited.  In  such  settlements  jointure 
rent-charges  may  be  at  once  contingently  appointed'  to  the  possible 
widow  or  widows  of  the  first,  and  possibly  the  second,  of  the  tenants 
for  life ;  but  those  of  the  subsequent  tenants  for  life  are  provided  for 
by  powers  to  jointure  given  to  their  husbands.  If  there  be  female 
tenants  for  life,  they  are  empowered  to  make  like  provisions  for  sur- 
viving husbands,  though  these  provisions  are  not  called  jointures.  The 
donees  of  these  powers  are  the  successive  tenants  for  life  other 
than  those  whose  possible  widows  are  provided  for  by  the  settlement 
itself ;  every  donee  is  authorised  to  exercise  the  power  given  him,  either 
before  or  after  he  shall  become  entitled  in  possession,  and  in  favour  of 
any  and  every  woman  whom  he  may  marry  or  may  have  married,  but 
subject  to  all  uses  and  powers  limited,  or  capable  of  being  so  exercised 
as  to  affect  the  hereditaments  to  be  charged,  in  priority  to  the  estate  of 
the  donee  of  the  power;  the  instrument  purporting  to  exercise  the 
power  is  not  to  exercise  it  unless  the  donee  is  at  its  date,  or  afterwards 
he  or  some  descendant  of  his  becomes,  by  virtue  of  the  limitations  of 
the  settlement,  entitled  in  possession  to  the  land  to  be  charged.  More- 
over, as  if  there  be  several  donees  of  such  power  there  may  be  several 
rent-charges  payable  concurrently,  there  should  be  a  proviso  that  not 
more  than  a  specified  sum  shall  be  payable  at  the  same  time,  and  that 


SETTLED  LAND  ACTS  AND  POWEES  269 

the  jointures  charged  by  the  donees  whose  estates  are  later  in  order  of 
limitation  shall  abate  in  favour  of  the  others,  and  the  unpaid  part  sink 
into  the  estate. 

Defective  exercises  of  powers  to  jointure  have  been  aided  in  equity 
(Sug.  Fow.,  8th  ed.,  534 ;  Merve^j  v.  Hervey,  1739,  1  Atk.  561 ;  26  E.  E. 
352),  and  fraudulent  exercises,  in  so  far  as  they  were  not  to  operate  for 
the  benefit  of  the  objects,  have  been  defeated  {Lane  v.  Page,  175-4,  Amb. 
233 ;  27  E.  E.  155  ;  Baldwin  v.  Roche,  1842.  5  Jr.  Eq.  E.  110 ;  Saunders  v. 
Shafto,  [1905]  1  Ch.  126,  overruling  Whelan  v.  Palmer,  1888,  39  Ch.  D. 
648). 

Powers  to  Charge  for  Portions. — In  most  cases  in  which  it  is  expedient 
to  insert  in  settlements  powers  to  jointure,  it  is  also  expedient  to  give 
to  the  same  donees  powers  to  charge  the  land  with  sums  of  money,  and 
to  provide  means  for  raising  them,  in  order  to  provide  portions  for 
younger  children,  that  is  to  say,  children  who  do  not  succeed  to  the 
estate  (see  Portions).  It  is  also  often  wished  to  insert  such  powers 
where  a  series  of  limitations  for  life  are  followed  by  remainders  to  the 
sons  of  the  tenants  for  life  in  tail-male  respectively,  so  that  the  estate 
may  pass  over  the  daughters  of  an  elder  branch  of  the  family  to  the 
son  of  a  younger  son.  Settlors  in  such  cases  sometimes  wish  the  fathers 
of  such  daughters,  whether  those  fathers  succeed  themselves  to  the 
estate  or  not,  shall  be  enabled  to  charge  the  estate  with  money  for 
portions,  and  sometimes  for  additional  portions,  for  them. 

When  a  power  to  charge  for  portions  is  contained  in  a  simple  marriage 
settlement,  the  donee  should  be  authorised,  if  he  or  she  shall  survive 
his  or  her  intended  spouse  and  shall  marry  again,  to  exercise  the  power 
before  or  after  any  and  every  such  subsequent  marriage,  and  to  do  so  by 
deed  or  will  and  by  charging  any  sum  or  sums  not  exceeding  a  specified 
sum — the  precedence  of  any  jointure  rent-charge  or  other  limitation 
or  power  which  ought  to  have  precedence  being  expressly  reserved. 
The  sum  chargeable  is  often  made  to  depend  on  the  number  of  the 
children  the  donee  may  have  to  provide  for.  The  donee  is  further 
authorised  to  appoint  the  fund  to  be  raised  among  the  objects  of  the 
power — an  authority  which  is  now  shown  to  have  the  same  meaning  as 
a  power  to  appoint  among  issue  in  a  settlement  of  personalty  {Henty  v. 
Wray,  1882,  21  Ch.  D.  332,  354) — with  provisions  for  advancement  (see 
in  Powers  in  Settlements  of  Personalty'  ;  Portions),  power  to  appoint 
among  issue,  and  to  charge  maintenance  income  during  the  infancies  of 
contingent  portionists,  and  to  appoint  the  land  charged  to  trustees  for  a 
term  of  years  upon  trust  by  means  specified  in  the  power  (see  Portions), 
to  raise  the  principal  money  and  maintenance  money  charged,  and  the 
expenses  of  executing  the  trust.  A  proviso  is  added  precluding  the 
creation  by  repeated  exercises  of  the  power,  greater  gross  and  yearly 
sums  than  some  specified  for  the  purpose  in  the  proviso. 

Where  the  power  is  to  be  exercised  by  remaindermen,  they  should  be 
authorised  to  exercise  it  subject  to  such  limitations  as  ought  to  have 
priority  over  the  charges  they  are  empowered  to  make,  and  otherwise  in 
the  manner  above  described  in  the  case  of  such  a  power  given  in  a 
marriage  settlement  to  the  husband  or  wife,  and  also  with  the  following 
provisions.  Every  donee  should  be  enabled  to  exercise  the  power 
repeatedly  and  by  an  instrument  executed  before  he  becomes  entitled  in 
possession  to  the  land  to  be  charged,  but  unless  the  settlor  in  the 
particular  case  has  a  contrary  intention,  so  as  that  the  charge  shall  not 
become  operative  unless  the  donee  or  his  issue  shall  become  entitled  in 
possession. 

/ 


270     SETTLED  LAND  ACTS  AND  POWEKS— PRECEDENTS 

Power  for  Donee  to  Charge  for  his  own  Benefit. — In  a  marriage  settle- 
ment of  land  the  settlor  not  infrequently  reserves  to  himself  a  power  of 
this  description,  and  in  family  settlements  the  power  is  often  given  to 
one  or  more  of  the  settlors.  In  a  marriage  settlement  the  power  con- 
stitutes a  deduction  from  the  property  nominally  offered  for  settlement, 
and  may  be  acquiesced  in  or  objected  to  on  behalf  of  the  other  intended 
spouse.  In  a  family  settlement  it  generally  constitutes  the  price  of 
some  concession  by  the  donee  of  the  power  to  another  party  to  the 
deed. 

The  donee  is  usually  authorised  to  exercise  the  power  by  deed  or 
will,  and  if,  as  in  most  cases  they  would  were  their  attention  drawn  to 
the  point,  the  parties  do  wish  that  it  should  not  be  capable  of  being 
exercised  by  a  general  devise  or  bequest,  that  possibility  may  be  precluded 
by  requiring  that,  in  order  to  exercise  the  power,  a  will  shall  expressly 
refer  to  it ;  the  power  will  then  not  be  one  to  appoint  in  any  manner 
the  donee  may  think  proper  (1  Vict.  c.  26,  s.  27 ;  Phillips  v.  Cayley, 
1889,  43  Ch.  D.  222 ;  In  re  Davies,  [1892]  3  Ch.  63).  Prior  limitations 
and  powers  are  usually  guarded.  The  donee  is  authorised  to  charge  all 
or  any  of  the  settled  land,  with  the  payment  to  himself  or  any  other 
person  or  persons,  and  his  or  their  executors,  administrators,  or  assigns, 
of  any  sum  or  sums  of  money  not  exceeding  one  specified  in  the  power, 
with  interest  at  a  rate  not  exceeding  one  named ;  and  also  to  appoint, 
subject  to  the  guarded  limitations  and  powers,  the  land  charged  or  any 
part  thereof  to  the  same  or  any  other  person  or  persons  for  any  term  or 
terms  of  years,  with  or  without  impeachment  of  waste  upon  usual  trusts 
for  raising  by  mortgage  or  otherwise  the  sum  or  sums  and  interest 
charged  and  the  expenses  to  be  incurred  in  or  about  the  execution  of 
the  trusts  of  the  term  or  terms  (3  Dav.  Conv.,  3rd  ed.,  1048).  In  the 
absence  of  an  express  power  to  charge  interest,  the  donee  of  the  power 
could  charge  it  at  the  Court  rate  {Simpson  v.  0' Sullivan,  1843,  3  Dr.  &  W. 
446,  458).  That  rate  is  now  4  per  cent,  per  annum  both  in  England 
(R.  S.  0.,  1883,  rr.  62-64)  and  Ireland  (G.  0.  211,  October  31, 1867);  but 
consider  now  In  re  Rowlls,  [1900]  2  Ch.  107,  118;  In  re  Woods,  1904, 
2  Ch.  4. 

An  exercise  of  the  power  to  charge,  although  the  money  may  not  be 
at  once  raised,  entitles  the  person — whether  he  be  the  donee  or  another 
— in  favour  of  whom  the  charge  is  made  to  the  sum  charged  with 
interest  thereon  as  part  of  that  person's  personal  estate  {Simmons  v. 
Pitt,  1873,  L.  E.  8  Ch.  978). 

[^Authorities. — Wolstenholme,  Conveyancing  Acts,  7th  ed. ;  Vaizey, 
Settleme7its ;  Hood  and  Challis,  Conv.  and  Sett.  Land  Acts,  6th  ed. ; 
Clerke,  Settled  Land  Acts,  4th  ed.] 


PRECEDENTS. 


I.  AGREEMENT  for  Sale  of  Freeholds  by  Tenant  for  Life  or 
other  Limited  Owner  under  Settled  Land  Acts,  1882  to  1890.  Variation 
where  Principal  Mansion  House,  Park,  &c.,  are  included  in  the  Sale. 

MEMORANDUM  OF  AGREEMENT  made  the  day  of 

between  A.,  of,  &c.  (hereinafter  called  the  vendor),  of  the 
one  part,  and  B.,  of,  &c.  (hereinafter  called  the  purchaser),  of  the  other 
part. 


SETTLED  LAND  ACTS  AKD  POWERS— PEECEDENTS     271 

1.  The  vendor,  who  is  selling  as  tenant  for  life  in  possession  {or 
a  person  having  the  powers  of  a  tenant  for  life  within  the  meaning 
of  the  Settled  Land  Acts,  1882  to  1890]  under  a  settlement  made  by  the 
will  of,  &c.,  or  as  the  case  may  be,  and  under  the  powers  of  the  S.  L.  A., 
1882  to  1890,  agrees  to  sell  [subject  to  the  consent  of  the  trustees  of  the 
said  settlement  ^  or  the  approval  of  the  Court  being  obtained  as  herein- 
after mentioned],  and  the  purchaser  agrees  to  purchase,  for  the  sum 
of  &  ,  the  inheritance  in  fee  simple  in  possession  of  the 

[principal  mansion  house  and  the  lands  enjoyed  therewith  and  other] 
hereditaments  specified  in  the  schedule  hereto,  with  the  appurtenances 
thereof  [subject  to  a  term  of  years,  now  vested  in  Messrs. 

as  mortgagees  for  securing  the  sum  of  £  raised  for  portions  for 

younger  children,  but  otherwise]  free  from  incumbrances. 

[2.  Provision  as  to  timber,  fixtures,  &c.,  if  any,  to  be  taken  at  a  valuation, 
Conditions  of  Sale,  Vol.  IIL  p.  435.] 

3.  The  purchase  shall  be  completed  on  or  before  the  day 
of  next  at  the  office  of  Messrs.  at  ,  the 
vendor's  solicitors,  on  or  before  which  day  [the  sum  of  £  , 
being  part  of  the  said  purchase-money  already  paid  as  a  deposit  to 
Mr.  ,  as  stakeholder,  or  "into  the  Bank  in  the 
joint  names  of,  &c.,  as  stakeholders,  but  at  the  risk  of  the  purchaser," 
shall  be  paid  by  the  said  ,  and  the  residue  of]  the  said 
purchase  [and  valuation]  money  shall  be  paid  by  the  purchaser  to  the 
trustees  for  the  purposes  of  the  S.  L.  A.,  1882  to  1890,  of  the  said 
settlement,  or,  at  the  option  of  the  vendor,  to  be  signified  in  writing 
to  the  purchaser  within  one  week  after  the  title  is  accepted,  into 
Court. 

4.  If  at  any  time  before  completion  it  shall  appear  that  the  vendor 
is  unable  to  assure  the  said  hereditaments  to  the  purchaser  for  an  estate 
in  fee  simple  [subject  as  aforesaid]  unless  and  until  trustees  for  the 
purposes  of  the  S.  L.  A.,  1882  to  1890,  of  the  said  settlement  or  of  any 
compound  settlement  consisting  of  the  said  will  [indenture]  and  any 
other  document  or  documents  are  appointed,  the  vendor  will  at  his  own 
expense  or  that  of  the  settled  estate  either  himself  appoint  or  apply  to 
the  Court  to  appoint  proper  persons  to  be  such  trustees. 

5.  Provisions  as  to  possession  and  interest,  insurances,  outgoings,  &c.. 
Conditions  of  Sale,  Precedent  II.,  Vol.  III.  p.  434. 

6.  Provisions  as  to  abstract,  with  appropriate  special  conditions,  and  as  to 
requisitions  and  compensation,  or  provision  as  to  acceptance  of  title,  Pre- 
cedent II.,  Vol.  III.  p.  435. 

7.  Upon  payment  of  the  purchase  [and  valuation]  money  to  the 
said  trustees,  or  into  Court  as  aforesaid,  continue  as  i7i  Form  17,  Vol.  III. 
p.  436. 

8.  The  vendor  being  tenant  for  life  of  the  property  [and  having 

*  As  to  the  nece.ssity  for  giving  notice  of  the  sale  to  the  trustees,  unless 
waived  by  them,  see  the  Act  or  1882,  s.  45,  as  modified  by  the  Act  of  1884,  s.  5. 
The  waiver  should  precede  the  contract,  and  not  be  made  in  the  contract  itself, 
such  a  course  being  of  doubtful  validity,  and  being  a  matter  which  does  not 
concern  a  purchaser  dealing  in  good  faith.  If  there  are  no  trustees  for  the 
purposes  of  the  Act,  no  contract  should  be  entered  into  until  they  are  appointed 
{iFheelwright  v.  Walker,  1883,  23  Ch.  D.  752). 


272    SETTLED  LAND  ACTS  AND  POWERS— PRECEDENTS 

by  indenture  dated,  &c.,  mortgaged  his  life  interest  therein  to  the 
said  to  secure  the  sum  of  £  ]  will  procure  the  con- 

currence in  the  assurance  of  the  property  to  the  purchaser  of  the  said 
trustees  [and  of  Messrs.  ,  in  whom  the  said  mortgage  is  now 

vested  as  transferees  thereof]. 

9.  As  the  vendor  is  selling  as  tenant  for  life,  or,  "  limited  owner," 
under  the  powers  of  the  S.  L.  Acts,  1882  to  1890,  his  covenants  for  title 
and  further  assurance,  whether  expressed  or  implied,  shall  as  regards  the 
reversion  or  remainder  expectant  on  his  [life]  estate  in  the  property  be 
qualified  so  as  to  extend  only  to  the  acts  of  himself  and  persons  claiming 
under  him, 

10.  Provisions  as  to  resei-vations,  restrictions  and  costs  of  contract  as  in 
Precedent  IL,  Vol.  III.  p.  434  et  seq. 

11.  1  The  vendor  shall  on  or  before  the  day  of  , 
at  his  own  cost  or  that  of  the  settled  estate,  apply  for  and  endeavour 
to  obtain  the  consent  of  the  said  trustees  to  or  an  order  of  the  Court 
approving  the  sale,  and  in  case  such  consent  or  order  shall  not  be 
obtained  on  or  before  the  day  of  ,  or  such  later 
day  as  the  vendor  and  the  purchaser  shall  agree  to  [or  in  case  the  sale 
cannot  for  any  reason  arising  from  the  state  of  the  title  be  carried  into 
eflfect  under  the  statutory  or  other  powers  of  the  vendor  or  his  trustees] 
then  the  sale  shall  be  void,  and  the  deposit  shall  be  [released  and]  returned 
to  the  purchaser,  but  without  any  interest,  costs,  or  compensation. 

In  witness,  &c. 

II.  NOTICE  by  Tenant  for  Life  to  Trustees  of  Intention  to  Sell  under 

theS.  L.  Acts,  1882  to  1890. 

To  a.,  one  of  the  trustees  [to  Messrs.  B.  &  Co.,  the  solicitors  to  the 
trustees]  of  a  settlement  dated,  &c.,  made  on  the  marriage  of  D. 
and  E.  his  wife,  or,  "  the  will  dated,  &c.,  and  proved  on,  &c.,  of  X. 
deceased." 

I  HEREBY  give  you  notice  that  it  is  my  intention  under  the  powers 
of  the  Settled  Land  Acts,  1882  to  1890,  to  sell,  or,  "lease,"  as  the  case 
may  be,  the  property  described  in  the  schedule  hereto  being  part  of  the 
property  comprised  in  or  subject  to  the  above-mentioned  settlement, 
or  "  will." 

Schedule  giving  short  description  of  property. 

Dated  this  day  of  . 

(Signed)        D.,  tenant  for  life. 

III.  NOTICE  by  Solicitors  of  Tenant  far  Life  to  Trustees   of 

Intention  to  Exercise  Powers  of  S.  L,  Acts. 

To  A.,  of,  &c.,  as  in  Precedent  II.,  supra. 

As  solicitors  for  and  on  behalf  of  D.,  of,  &c.,  we  hereby  give  you 
notice  that  it  is  the  intention  of  the  said  D.,  by  virtue  of  the  powers 

^  In  cases  where  applicable. 


SETTLED  LAND  ACTS  AND  POWEKS— PKECEDENTS    273 

vested  in  him  by  the  Settled  Land  Acts,  1882  to  1890,  as  tenant  for 
life  of  the  estate,  in  the  parish  of,  &c.,  and  county  of,  &c., 

under  the  above-mentioned  settlement  [will]  to  enter  into  a  contract 
with  X.,  of,  &c.,  and  Y.,  of,  &c.,  for  the  sale  or  grant  to  them  of  a  piece 
of  land  situate,  &c.,  forming  part  of  the  said  estate,  and  for 

carrying  out  certain  arrangements  with  respect  to  building  upon  part  of 
the  said  estate,  and  the  making  of  roads  through  the  lands 

and  property  aforesaid,  and  for  securing  to  the  owners  of  the  said 
estate  and  the  said  X.  and  Y.  rights  of  way  and  other 
easements  and  rights  over  such  roads,  and  for  other  incidental  purposes. 
Dated,  &c. 

(Signed)        A.  &  Co. 

[Address] 
Solicitors  for  the  said  D. 

rV.  WAIVER  by  Trustees  of  Settlement  or  Will,  of  Notice  under 

S.  L.  Ads} 

To  A,,  of,  &c.,  the  tenant  for  life  in  possession  of  the  hereditaments  and 
premises  settled  by,  settlement  or  will. 

We,  X.,  of  ,  and  Y.,  of  ,  the  trustees  [appointed  by 

the  Court  on  the  day  of  ]  of  the  above-mentioned 

settlement  [will]  for  the  purposes  of  the  Settled  Land  Acts,  1882  to 
1890,  pursuant  to  the  power  for  this  purpose  given  to  us  by  sec.  5  of 
the  Settled  Land  Act,  1884,  hereby  waive  generally  the  notice  by  the 
said  Acts  or  any  of  them  required  to  be  given  to  us  and  our  solicitor  of 
your  intention  to  make  any  sale,  exchange,  partition  or  lease  under  the 
powers  of  the  said  Acts,  or  "  We,  &c.,  hereby  agree  to  accept  the  notice 
dated,  &c.,  given  by  you  to  us  of  your  intention,  &c.,  although  less  than 
one  month,  as  sufficient." 

As  WITNESS  our  hands  this  day  of 

V.  CONSENT  by  Trustees  to  Tenant/^w  Life  Cutting  and  Selling  Tiniber. 

To  A.,  tenant  for  life  [limited  owner]  of  the  Y.  estate  under  an 
indenture  of  settlement,  dated,  &c.,  and  made,  &c.,  or,  *'  the  will  of  X., 
deceased."  We,  the  trustees  of  the  above-mentioned  settlement  [will], 
do  hereby,  pursuant  to  the  Settled  Land  Acts,  1882  to  1890,  give  our 
consent  to  your  cutting  and  selling  the  timber  which  is  ripe  and  fit 
for  cutting  on  the  lands  described  in  the  schedule  hereto  [Provided 
that  three-fourths  of  the  net  proceeds  of  the  sale  are  to  be  paid  to 
us  to  be  applied  as  capital  money]. 

Dated,  &c. 

[Short  schedule  of  parcels.'] 

Signatures  of  ti-ustees. 
Witness. 

*  It  is  a  question  whether  the  trustees  can  waive  notice  to  future  trustees  ; 
and  whether  a  sole  trustee  to  whom  notice  would  not  suffice,  under  the  Act  of 
1882,  s.  39,  can  waive  notice. 

VOL.  XIIL  18 


274    SETTLED  LAND  ACTS  AND  POWERS— PRECEDENTS 

VL  CONSENT  by  Trustees  to  Sale  or  Lease  of  Mansion  House.'^ 

Commencement  as  in  Precedent  V.  supra.  We,  the  trustees  under  the 
above-mentioned  settlement  [will]  do  hereby,  pursuant  to  the  Settled 
Land  Acts,  1882  to  1890,  give  our  consent  to  your  selling  [leasing]  the 
mansion  house  and  lands  described  in  the  schedule  hereto,  or  any  part 
or  parts  thereof,  in  such  manner  and  subject  to  such  [particulars]  con- 
ditions and  provisions  and  upon  such  terms  as  you  may  think  fit,  and 
we  hereby  undertake  and  agree  to  sign  and  execute  such  deeds  or 
instruments  for  further  testifying  our  consent  to  any  such  sale  [lease] 
as  may  be  deemed  proper. 

Dated,  &c. 

l^Short  schedule  of  parcels."] 

Signatures  of  trustees. 
Witness. 

VIL  DIRECTION  hy  Tenant  fcrr  Life  to  Purchaser  to  Pay  Money  to 
Trustees  w  into  Court. 

To  Mr.  A.,  purchaser. 

I,  B.,  of,  &c.,  tenant  for  life  [limited  owner]  of  the  property  known 
as  ,   comprised  in  a  contract  dated,  &c.,  and  made  between 

myself  of  the  one  part  and  you  of  the  other  part,  do  hereby  by  virtue 
of  the  powers  vested  in  me  under  the  Settled  Land  Acts,  1882  to  1890, 
direct  you  to  pay  the  purchase-money  [amounting  to  £  ]  payable 

by  you  under  the  said  contract  to  C,  of,  &c.,  and  D.,  of,  &c.,  the  trustees 
of  an  indenture  of  settlement  dated,  &c.,  or,  "  the  will  of  X.,  deceased," 
[or,  into  Court,  pursuant  to  the  order  dated,  &c.,  which  has  been  ob- 
tained for  that  purpose]. 

Dated,  &c. 

Signature  of  tenant  for  life  or  other  limited  owner. 
Witness. 

VIIL  APPOINTMENT  of  a  New  "Trustee  of  a  Settlement" 
created  hy  Will,  for  the  Purposes  of  the  Settled  Land  Acts, 
where  the  Original  Trustees  have  been  Appointed  hy  the  Court. 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [surviving  trustee"],  of,  &c.,  and  [surviving  trustee],  of,  &c.,  of  the 
first  part  [tenant  for  life],  of,  &c.,  of  the  second  part,  and  [new  trustee], 
of,  &c.,  of  the  third  part :  Whereas  [testator],  late  of,  &c.,  deceased,  duly 
made  and  executed  his  will,  dated,  &c.,  and  thereby  gave  and  devised 
all  his  messuages,  lands  and  hereditaments,  situate  at,  &c.,  to  the  use  of 
the  said  [tenant  for  life],  without  impeachment  of  waste,  with  divers 
remainders  over,  but  the  said  will  contained  no  power  of  sale  of  the 
lands  thereby  settled :  And  whereas  the  said  [testator]  died  on  the 
day  of  19     ,  without  having  revoked  or  altered  his 

I        said  will,  and  seised  in  fee  simple  in  possession  of  the  said  hereditaments 

1  See  the  Act  of  1890,  s.  10,  and  Forms  VI.  and  VII.  in  the  Rules  of  Court 
of  December  1882,  under  the  original  Act. 


SETTLED  LAND  ACTS  AKD  POWEES— PEECEDENTS     275 

and  premises  thereby  devised :    And  whereas  by   an   order  of  the 
Chancery  Division  of  the  High  Court  of  Justice,  made  by  Mr.  Justice 
on  the  day  of  19    ,  upon  the  application 

of  the  said  [tenant  for  life],  the  said  [surviving  trustees]  and  [deceased 
trustee],  late  of,  &c.,  deceased,  were  appointed  to  be  trustees  of  the 
settlement  created  by  the  said  will  within  the  meaning  and  for  the 
purposes  of  the  Settled  Land  Acts,  1882  to  1890:  And  whereas  the  said 
[deceased  trustee]  died  on  the  day  of  19  :  And  whereas  the  said 
[continuing  tmstees]  are  desirous  of  appointing  the  said  [new  trustee]  to  be 
a  trustee  in  the  place  of  the  said  [deceased  tmstee],  and  the  said  [tenant 
for  life]  has  consented  to  such  appointment :  NOW  THIS  INDENTUEE 
WITNESSETH  that,  for  effectuating  the  said  desire  the  said  [continuing 
trustees],  in  exercise  of  the  power  given  to  them  by  the  Conveyancing 
and  Law  of  Property  Act,  1881,  and  of  every  other  power  them  here- 
unto enabling,  do  hereby,  with  the  consent  and  approbation  of  the  said 
[tenant  for  life]  (testified  by  his  executing  these  presents),  appoint  the 
said  [new  ti-ustee]  to  be  a  trustee  of  the  settlement  created  by  the  said 
will  within  the  meaning  of  the  Settled  Land  Act,  1882,  in  the  place  of 
the  said  [deceased  trustee],  deceased  as  aforesaid,  and  to  act  jointly  with 
them  the  said  [continuing  trustees],  for  the  purposes  of  the  said  Act  lastly 
hereinbefore  mentioned. 
In  witness,  &c. 


IX.  CONVEYANCE  of  Freeholds  on  Sale  hy  Tenant  for  Life  under 
the  Settled  Land  Acts;  the  Purchase-money  being  paid  to  the 
Trustees  of  the  Settlement.  Variations  where  the  PurcJvase-money 
is  Paid  into  Court,  and  where  the  Sale  iivcludes  the  Principal 
Mansion  Hmise,  &c} 

THIS  INDENTUEE,  made  the  day  of  19     , 

Between  [tenant  for  life],  of,  &c.,  of  the  first  part ;  [trustee],  of,  &c., 
And  [trustee],  of,  &c.,  of  the  second  part ;  ^  and  [^urcJiaser],  of,  &c.,  of 
the  third  part :  Whereas,  under  or  by  virtue  of  an  indenture  of  settle- 
ment dated,  &c.,  and  made,  &c.,  the  hereditaments  hereby  conveyed 
stand  limited  to  certain  uses,  under  which  the  said  [tenant  for  life]  is 
tenant  for  life  in  possession  thereof,  with  remainders  over,^  and  the 
said  indenture  of  settlement  contains  a  power  for  the  said  [tenant  for 
life]  to  raise  a  sum  or  sums  of  money  by  way  of  portions  for  his  children 
AS  therein  mentioned,  and  also  contains  a  power  for  the  said  [trustees] 
with  the  consent  of  the  said  [tenant  for  life],*  to  sell  the  said  heredita- 

^  For  form  of  Deed  of  Exchange  between  tenant  for  life  under  Settled 
Land  Acts  and  owner  in  fee,  see  Exchange,  Precedent  V.,  Vol.  V.  p.  397. 

2  If  the  sale  be  made  with  the  sanction  of  the  Court,  the  trustees  will 
not  be  necessary  parties  unless  they  are  to  receive  the  purchase-money. 

3  If  the  vendor  is  not  a  tenant  for  life,  but  a  person  having  under  the  Acts 
the  powers  of  a  tenant  for  life,  sufficient  of  the  settlement  should  be  recited  to 
jshow  what  his  estate  or  interest,  which  empowers  him  to  convey,  in  fact  is. 

*  In  the  case  in  the  text  the  trustees  of  the  settlement  are,  by  the  definition 
contained  in  sec.  2  (8)  of  the  Settled  Land  Act,  1882,  trustees  of  the  settle- 
ment for  the  purposes  of  the  Act.  If  the  settlement  contain  a  clause  appointing 
the  trustees  to  be  trustees  for  the  purposes  of  the  Act,  this  clause  should  be 
recited. 


276    SETTLED  LAND  ACTS  AND  POWERS— PKECEDENTS 

ments  as  therein  mentioned  :  And  whereas  the  said  [ti-ustees]  have 
agreed  to  testify  their  consent  to  such  sale  in  manner  hereinafter 
appearing :  ^  [And  whereas,  by  an  order  of  the  Chancery  Division  of  His 
Majesty's  High  Court  of  Justice,  dated  the  day  of 

19     ,  and  made  by  Mr.  Justice  X.:  In  the  matter  of  the  estate, 

&c.  [set  out  the  full  title  of  the  matter],  on  the  application  of  the  said 
[tenant  for  life],  the  tenant  for  life  under  the  said  settlement,  it  was 
ordered  that  the  said  [tenant  for  life],  or  his  successors,  be  at  liberty  to 
sell  the  principal  mansion-house  and  the  lands  usually  held  therewith 
(being  the  said  lands  and  hereditaments  hereby  conveyed)] :  ^  And 
WHEREAS  no  money  has  been  actually  raised  under  the  said  power  of 
portioning  at  the  date  of  these  presents :  ^  And  whereas  the  said 
[tenant  for  life],  as  such  tenant  for  life  as  aforesaid,  has  agreed  with  the 
said  [purchaser]  for  the  sale  to  him  in  fee  simple  in  possession,  free  from 
incumbrances,  of  the  said  hereditaments  hereby  conveyed,  at  the  price 
of  £  :  And  whereas,  upon  the  said  agreement  being  entered 

into,  the  said  [j)urchaser]  paid  to  the  said  [tenant  for  life]  the  sum  of 
£  ,  by  way  of  deposit ;  [And  whereas,  in  pursuance  of  an  order 

of  the  Chancery  Division  of  the  High  Court  of  Justice,  dated,  &c.,  and 
made  by  Mr.  Justice  X.  :  In  the  matter,  &c.,  the  sum  of  £  ,  being 

the  amount  of  the  said  deposit,  after  deducting  therefrom  the  costs  of 
paying  in  the  same,  was  paid  by  the  said  [tenant  for  life]  into  Court  to 
the  credit  of,  &c. ;  And  whereas,  in  pursuance  of  an  order,  &c.,  the 
sum  of  £  ,  being  the  amount  of  the  said  purchase-money  after 

deducting  therefrom  the  said  deposit,  were  duly  paid  by  the  said  [pur- 
chaser] into  Court  to  the  credit  aforesaid] :  *  And  whereas  [recite 
agreement  far  acknowledgment  and  undertaking  as  to  deeds].  NOW  THIS 
INDENTURE  WITNESSETH  that,  in  pursuance  of  the  said  agree- 
ment, and  in  consideration  of  the  sum  of  £  ,  paid  by  the  said 
[jmrchaser]  by  the  direction  of  the  said  [tenant  for  life]  to  the  said 
[ti-ustees]  as  such  trustees  as  aforesaid,  the  receipt  and  payment  whereof 
in  manner  aforesaid  the  said  [trustees]  and  the  said  [tenant  for  life] 
respectfully  hereby  acknowledge,  or  [In  consideration  of  the  said  sum  of 
£  ,  and  £  ,  (making  together  the  sum  oi  £  )  so  paid 
as  aforesaid,  of  which  sums  of  £  and  £  the  said  [tenant  for 
life]  hereby  acknowledges  the  payment  in  manner  aforesaid],^  the  said 

*  If  the  property  sold  be  the  principal  mansion  house  of  the  settled  estate, 
the  consent  of  the  trustees  or  an  order  of  the  Court  is  necessary  to  enable  the 
tenant  for  life  to  sell.  If  the  sale  is  made  with  the  consent  of  the  trustees  this 
recital  should  be  inserted. 

2  This  recital  is  necessary,  of  course,  only  when  such  an  order  has  been 
obtained. 

3  It  is  advisable  to  refer,  in  reciting  the  settlement,  to  any  power  of 
charging  the  estate  by  way  of  portions  or  otherwise,  and  to  recite  that  no 
money  has  been  actually  raised  under  any  such  power,  in  order  to  preclude  a 
future  purchaser,  after  the  lapse  of  twenty  years,  from  making  any  requisi- 
tion as  to  estates,  interests,  or  charges,  conveyed  or  created  for  securing  such 
money. 

*  The  tenant  for  life  has  the  option,  under  sec.  22,  to  direct  whether  the 

Surchase-money  shall  be  paid  into  Court,  or  to  the  trustees.     If  he  chooses  to 
irect  payment  into  Court,  the  trustees  will  not  be  parties  to  the  conveyance, 
and  this  recital  will  be  here  inserted. 

s  If  the  purchase-money  be  paid  into  Court,  the  consideration  will  be 
stated  as  in  this  bracket. 


SETTLED  LAND  ACTS  AND  POWERS— PKECEDENTS    277 

\tenantfor  life],  in  exercise  of  the  power  in  this  behalf  given  to  him  by 
the  Settled  Land  Acts,  1882  to  1890,  and  of  every  or  any  other  power 
enabling  him  [with  the  consent  of  the  said  [trustees]  testified  by  their 
respectively  executing  these  presents,  or  by  the  order  and  with  the 
sanction  of  the  Court,  testified  by  the  hereinbefore  recited  order  of,  &c.]  ^ 
hereby,  as  beneficial  owner,  conveys  unto  the  said  \jpurclmsei']  and  his 
heirs  All  those  the  several  closes  and  parcels  of  land,  containing  in 
the  whole  acres,  roods,  or  thereabouts,  situate  and  being  in 

the  parish  of  in  the  county  of  ,  all  of  which  closes  and 

parcels  of  land  and  hereditaments  are  more  particularly  described  in 
the  first  schedule  hereunder  written :  To  hold  all  the  premises  unto 
AND  TO  THE  USE  of  the  said  [jpurchaser],  his  heirs  and  assigns.  Freed 
and  discharged  from  the  limitations,  powers,  and  provisos  of  the  said 
indenture  of  settlement,  and  from  all  estates,  interests,  and  charges 
subsisting  or  to  arise  thereunder :  Provided  always,  that  so  far  as 
regards  the  reversion  or  remainder  expectant  on  the  life  estate  of  the 
said  \te7iant  for  life]  in  the  premises  hereby  conveyed,  and  the  title  thereto 
and  the  further  assurance  thereof  after  his  decease,  the  covenants  on  his 
part  implied  in  these  presents  by  statute  shall  not  extend  to  the  acts  or 
defaults  of  any  person  other  than  or  except  himself  and  his  own  heirs 
and  persons  claiming  or  to  claim  through  or  in  trust  for  him  or  them ; 
And  the  said  [tenant  for  life]  ^  hereby  acknowledges  the  right  of  the 
said  purchaser  to  the  production  of  the  several  deeds  and  documents 
specified  in  the  Second  Schedule  hereto  and  to  delivery  of  copies  thereof, 
and  hereby  undertakes  for  the  safe  custody  thereof. 
In  witness,  &c. 

The  First  Schedule  above  referred  to. 

The  Second  Schedule  above  referred  to. 


X.  CONVEYANCE  of  Leaseholds  hy  Tenant  for  Life  under  the  Settled 
Land  Ads,  where  the  Settlement  is  by  way  of  Trust  for  Sale. 

THIS  INDENTURE,  made  the  day  of  19     ,  Between 

\tenant  for  life],  of,  &c.,  of  the  first  part  [trustee],  of,  &c.,  and  [trustee],  of, 
&c.  (hereinafter  called  the  trustees),  of  the  second  part,  and  [jiurchaser], 
of,  &c.,  of  the  third  part.  [Recite  the  lease,  and  devolution  of  title,  if  any, 
to  the  settlor,  see  Conveyance,  Precedents,  Vol.  III.,  at  p.  572]  :  And 
whereas  under  or  by  virtue  of  an  indenture,  dated,  &c,,  and  made,  &c. 
l/yr,  '•  the  will  of  X,,  deceased,  dated,  &c.,  and  proved,  &c."],  the  said 
hereditaments  and  premises  became  and  are  now  vested  in  the  said 
[trustees],  the  present  trustees  of  the  same  indenture  [or,  will]  upon  trust 
at  any  time  with  the  consent  in  writing  of  the  said  [tenant  fur  life],  to 
sell  the  same  or  any  part  or  parts  thereof,  and  the  said  [tenant  for  life] 

*  In  the  case  of  a  sale  of  a  principal  mansion-house,  the  consent  or  order 
will  be  stated  as  in  this  bracket. 

2  In  the  Precedent  in  the  text  the  tenant  for  life  is  assumed  to  have  the 
legal  estate,  and  in  that  case  he  is  the  proper  person  to  give  the  requisite 
acknowledgment.  If  the  legal  estate  is  vested  in  the  trustees  they  will  be 
parties  in  any  case,  and  give  an  acknowledgment  of  the  purchaser's  right  to 
production  thereof. 


278    SETTLED  LAND  ACTS  AND  POWERS— PEECEDENTS 

is  beneficially  entitled  to  the  possession  or  receipt  of  the  rents  and 
profits  of  the  same  premises  during  his  life  or  until  the  same  shall  be  sold 
[or,  recite  the  material  parts  of  the  deed  or  deeds  of  settlement  m-  will  at  length, 
and  any  subsequent  events  showing  that  the  tenant  for  life  is  a  limited  owner, 
and  that  the  ti'ustees  are  trustees  for  sale  within  the  Act.  Order  of  Court  under 
the  Settled  Land  Acts  authwising  the  tenant  for  life  to  exercise  the  powers  of 
the  Acts,  see  last  Precedent."]  And  whereas  the  said  [tenant  far  life\  by 
virtue  of  the  powers  vested  in  him  under  the  Settled  Land  Acts,  1882 
to  1890  \if  so,  and  the  hereinbefore  recited  order  of  the  Court],  has  agreed 
with  the  said  [purchaser\  &c.  [recital  of  agreement  for  sale"],  and  [recital 
introductory  to  covenant  for  p'oduction  of  deeds,  see  last  Precedent]  :  NOW 
THIS  INDENTURE  WITNESSETH  that  in  pursuance,  &c.,  considera- 
tion and  receipt,  as  is  in  last  Precedent,  the  said  tenant  for  life  as  bene- 
ficial OWner,  and  by  virtue,  &c.,  as  in  last  Precedent,  doth  hereby  assign 
and  convey  unto  the  said  [purchaser]  parcels.  To  HOLD  the  same  unto  the 
said  [pvrchasei-]  henceforth  for  all  the  residue  now  unexpired  of  the  said 
term  of  years,  granted  by  the  said  indenture  of  lease  subject 

henceforth  [w,   as  from  the  day   of  19     ]  to  the 

payment  of  the  rent  and  the  performance  and  observance  of  the  cove- 
nants on  the  part  of  the  lessee  and  conditions  by  and  in  the  same 
indenture  reserved  and  contained.  [Proviso  restricting  the  tenant  for  life's 
implied  covenants  for  title,  see  last  Precedent,  mutatis  mutandis."]  The  said 
l^rchaser]  doth  hereby  for  himself,  his  heirs,  executors,  administrators 
and  assigns  covenant  with  the  said  [tenant  for  life],  his  executors  and 
administrators,  that  he  the  said  [purcJmser],  his  executors,  administrators 
or  assigns,  will  henceforth,  during  the  continuance  of  the  said  term,  pay 
the  rent  reserved  by  and  perform  and  observe  the  covenant  and  agree- 
ments on  the  part  of  the  lessee,  and  conditions  contained  in  the  said 
indenture  of  lease,  and  will  at  all  times  keep  the  said  [tenant  for  life], 
his  heirs,  executors  and  administrators,  effectually  indemnified  against  all 
actions  and  proceedings,  costs,  damages,  expenses,  claims,  and  demands 
whatsoever,  by  reason  or  on  account  of  the  non-payment  of  the  said 
rent  or  any  part  thereof,  or  the  breach,  non-performance,  or  non-observance 
of  the  said  covenants,  agreements,  and  conditions  or  any  of  them. 
[Acknowledgment  and  undertaking  hy  A.,  or  acknowledgment  by  B.  and  C. 
as  to  muniments,  see  last  Precedent.] 
In  witness,  &c. 

[Schedule  of  Muniments.] 

XL  CONVEYANCE  of  Copyholds  and  Grant  of  a  Right  of  Way 
over  Adjoining  Freeholds  under  the  Settled  Land  Acts,  by  a  Tenant 
for  Life  under  a  Will. 

THIS  INDENTURE,  made  the  day  of  19    , 

Between  [tenant  foi-  life],  of,  &c.,  of  the  first  part ;  [trustee],  of,  &c.,  and 
[trustee],  of,  &c.,  of  the  second  part ;  and  [purchaser],  of,  &c.,  of  the  third 
part :  Whereas  X.,  of,  &c.,  deceased,  by  his  will,  dated,  &c.,  devised  his 
freehold  estates  and  hereditaments,  including  the  hereditaments  over 
which  a  right  of  way  is  hereby  granted,  to  certain  uses  under  which  the 
said  [tenant  for  life]  is  tenant  for  life  in  possession  thereof,  and  the  said 
[trustees]  are  trustees  of  the  said  will  with  a  power  of  sale  over  the  said 


SETTLED  LAXD  ACTS  AND  POWEES— PEECEDENTS    279 

hereditaments  and  premises,  exercisable  with  the  consent  of  the  said  A., 
and  the  said  testator  devised  his  copyhold  hereditaments,  including  the 
copyhold  hereditaments  hereby  assured  to  the  use  of  the  said  [trustees],  and 
their  heirs  upon  the  like  trusts,  and  subject  to  the  like  powers  and  pro- 
visions as  were  in  and  by  the  said  will  declared  and  contained  of  and  con- 
cerning the  said  freehold  hereditaments,  or  as  near  thereto  as  the  different 
tenure  of  the  property  would  admit,  and  the  said  testator  appointed  the 
said  [irmtees]  executors  of  his  said  will :  And  whereas  the  said  [testator] 
died  on  the  day  of  19     ,  without  having  altered 

or  revoked  his  said  will,  which  was  proved  by  the  said  executors  thereof 
in  the  Eegistry  of  the  High  Court  of  Justice  on  the 

day  of  19     :  And  whereas  on  the  day  of 

19  ,  the  said  [tritstees]  were  duly  admitted  tenants  of  the  hereditaments 
comprised  in  the  said  will  according  to  the  custom  of  the  manor  of 

:  And  whereas  the  said  [tenant  for  life],  by  virtue  of  the  powers 
vested  in  him  under  the  Settled  Land  Acts,  1882  to  1890,  has  agreed 
with  the  said  [purchaser]  for  the  sale  and  conveyance  and  grant  to  him 
of  the  copyhold  hereditaments  hereinafter  described  and  hereby  assured, 
and  the  inheritance  thereof  in  possession  according  to  the  custom  of  the 
manor,  and  also  of  the  right  of  way  hereinafter  granted,  free  from 
incumbrances,  for  the  sum  of  £  :  NOW  THIS  INDENTUEE 
WITNESSETH  that,  in  pursuance  of  the  said  recited  agreement  and 
in  consideration  of  the  sum  of  £  now  paid  by  the  said  [purchaser] 

by  the  direction  of  the  said  [tenant  for  life]  to  the  said  [trustees]  as  such 
trustees  as  aforesaid,  the  receipt  whereof  they,  the  said  [trustees],  do 
hereby  acknowledge,  and  the  payment  whereof  he,  the  said  [tenant  fvr 
life],  doth  hereby  acknowledge  the  said  [tenant  for  life],  as  beneficial 
owner,  by  virtue  of  the  powers  vested  in  him  under  the  Settled  Land 
Acts,  1882  to  1890,  and  of  every  other  power  enabling  him  in  this 
behalf,  doth  hereby  with  the  concurrence  of  the  said  [trustees]  grant 
unto  the  said  [^urcJiaser],  copyhold  parcels;  And  also  full  and  free 
liberty  for  the  said  [purchaser],  his  heirs  and  assigns,  the  owners  and 
occupiers  of  the  said  copyhold  premises  hereby  assured,  continue  as  at 
p.  568,  Vol.  III.,  tit.  Conveyance  j  To  hold  the  same  unto  and  to 
THE  use  of  the  said  [purchaser],  his  heirs  and  assigns,  but  as  to  the  said 
copyhold  premises  according  to  the  custom  of  the  said  manor,  and  by 
and  under  the  rents,  fines,  suits,  and  services  due  and  accustomed  for 
the  same,  and  as  to  the  said  right  of  way  to  the  intent  that  the  same 
may  be  annexed  in  enjoyment  to  the  said  copyhold  premises. 
In  witness,  &c. 

XII.  DEED  of  Enfranchisement  of  Copyholds  by  the  Tenant /«• 
Life  of  the  Manor.  Variations  where  the  Minerals  are  expressly 
Conveyed  or  Reserved,  where  the  Commonable  rights  are  Extinguished, 
and  for  Reservation  of  Sporting  Rights} 

THIS  INDENTUEE,  made  the  day  of  19    , 

Between  [tenant  far  life],  of,  &c.,  of  the  first  part ;  [trustee],  of,  &c., 

^  It  is  the  practice  to  enrol  the  deeds  on  the  Court  rolls.  If  the  manor  is 
registered,  a  proper  registered  transfer  must  be  made.  As  to  enfranchisement, 
where  the  manor  is  in  settlement,  the  tenant  for  life  can  enfranchise  under  the 


280    SETTLED  LAND  ACTS  AND  POWERS— PRECEDENTS 

and  [trustee],  of,  &c.  (hereinafter  called  the  trustees),  of  the  second  part ; 
and  [copyholder],  of,  &c.,  of  the  third  part  [p-ecite  the  settlement  of  the  manor 
setting  forth  uses  as  far  as  limitation  to  the  tenant  for  life,  and  showing  that 
the  trustees  are  trustees  within  the  Settled  Land  Ads]  :  And  whereas  on  the 
day  of  19     ,  the  said  [copyholder]  was  duly  admitted 

tenant  of  the  hereditaments  comprised  in  the  said  recited  Indenture  of 
Settlement  and  hereby  assured  according  to  the  custom  of  the  manor  of 
:  And  whereas  the  said  [tenant  for  life],  as  tenant  for  life 
of  the  said  manor,  under  the  said  recited  indenture  of  settlement,  and 
by  virtue  of  the  powers  of  the  Settled  Land  Acts,  1882  to  1890,  has 
agreed  with  the  said  [copyholder]  for  the  enfranchisement  of  the  said 
copyhold  premises  in  manner  hereinafter  mentioned  in  consideration  of 
the  sum  of  £  ,  and  it  has  been  agreed  that  the  mines  and  minerals 
in  or  under  the  same  shall  be  included  in  such  enfranchisement,  or, 
"  shall  be  reserved  with  the  right  of  working  the  same  and  otherwise," 
in  manner  hereinafter  appearing,  and  that  the  commonable  rights  exist- 
ing in  respect  of  the  said  premises  shall  be  preserved  [extinguished]  as 
hereinafter  appears  [and  that  such  other  reservations  shall  be  made  as 
are  hereinafter  expressed].  NOW  THIS  INDENTURE  WITNESSETH 
that  in  pursuance  of  the  said  recited  agreement,  and  in  consideration  of 
the  sum  of  £  now  paid  by  the  said  [copyholder]  by  direction  of  the 
[tenant  for  life]  to  the  trustees  as  such  trustees  as  aforesaid  (the  receipt 
whereof  they,  the  trustees,  do  hereby  acknowledge  and  the  payment 
whereof  in  manner  aforesaid  the  said  \tenant  for  life]  doth  hereby 
acknowledge),  the  said  [tenant  for  life],  as  beneficial  owner,  by  virtue 
of  the  powers  vested  in  him  by  the  Settled  Land  Acts,  1882  to  1890, 
and  of  every  other  power  enabling  him  in  that  behalf,  doth  hereby 
grant  [parcels].  [Together  with  the  mines  and  minerals  in  or  under 
the  same  premises  and]  [Together  with  all  rights  of  common  and 
commonable  rights  in,  over,  upon,  or  out  of  any  common  or  waste 
lands  of  the  said  manor  to  which  the  said  [copyholder],  his  heirs  or 
assigns  now  is,  or  but  for  these  presents  would  have  been  henceforth, 
entitled  in  respect  of  the  said  premises  hereby  enfranchised]  \<yr  as  the 
case  may  he,  except  and  reserving  unto  the  said  [tenant  for  life]  and  his 
successors  in  title,  lords  of  the  said  manor,  all  mines,  minerals,  and 
quarries  of  coal,  stone,  slate,  ironstone,  and  other  ores,  mines  and 
minerals  whatsoever  in  and  under  the  said  lands  and  premises  hereby 
enfranchised  or  any  part  thereof,  together  with  all  such  powers  and 
liberties  of  getting  and  working  the  same  and  otherwise  in  relation 
thereto  as  are   hereinafter  granted]    [and   all   franchises,    rights   and 

S.  L.  A.,  1882,  s.  3  (ii.),  4  (1,  6,  7) ;  tjie  circumstance  (as  in  this  case)  of  there 
being  only  one  trustee  not  creating  any  difficulty  where  (as  is  usual)  one  trustee 
is  authorised  to  act  generally,  see  In  re  Garnett  Orme,  25  Ch.  D.  595.  It  was 
becoming  the  practice  before  the  Act  to  vest  the  power  of  enfranchisement  in 
the  tenant  for  life,  so  as  to  enable  him  both  to  convey  and  give  a  discharge 
for  the  consideration  money,  for  which  he  was  accountable  to  the  trustees ; 
under  a  power  in  that  form,  the  procedure  was  somewhat  simpler  than  under 
the  Act,  as  the  concurrence  of  the  trustees  was  unnecessary.  Where  the  copy- 
hold is  settled  it  may  be  necessary  to  proceed  under  the  Copyhold  Act,  1894, 
67  &  58  Vict.  c.  46.  Part  1  (ss.  1-13)  of  the  Act  deals  with  compulsory 
enfranchisement,  Part  2  (ss.  14-20)  with  voluntary  enfranchisement,  and  Part  3 
(ss.  21-24)  states  the  effects  of  enfranchisement  under  the  Act :  see  M.  L.  R.  P. 
334,  335. 


SETTLED  LAND  ACTS  AND  POWERS— PEECEDENTS    281 

royalties  and  all  ancient  fisheries  and  rights  of  fishing :  And  also  all 
such  liberties  of  chase  and  free  warren  and  killing  of  game  (if  any)  as 
have  been  heretofore  anciently  used  and  enjoyed  by  the  lords  of  the 
said  manor  or  to  which  by  law,  grant  or  custom  they  are  entitled]  : 
To  HOLD  the  same  UNTO  AND  TO  THE  USE  OF  the  said  [copyholder],  his 
heirs  and  assigns,  Freed  and  for  ever  discharged  of  and  from  all  rents, 
fines,  duties,  services,  and  other  incidents  of  customary  tenure  [other 
than  and  except  such  as  are  herein  excepted  and  reserved] :  [AND 
THIS  INDENTURE  ALSO  WITNESSETH  that  in  consideration  of 
the  premises  and  by  virtue  of  the  powers  of  the  Copyhold  Acts,  and  of 
every  or  any  other  power,  estate,  or  interest  in  any  wise  enabling  him 
in  this  behalf,  he  the  said  [copyholder],  as  beneficial  OWneP,  Doth 
hereby  grant  unto  the  said  [tenant  for  life]  and  his  successors  in  title, 
lords  of  the  said  manor,  full  and  free  liberty  and  power,  &c.,  powers  of 
getting  minerals,  see  tit.  Copyhold,  Precedent  VII.,  Vol.  III.  p.  617 ;  [i/ 
such  be  the  intention,  add  "Provided  always,  and  it  is  hereby  agreed 
and  declared  that  all  rights  of  common  and  commonable  rights,  &c.,  05 
above,  shall  henceforth  be  extinguished  for  the  benefit  of  the  said  [tenant 
for  life],  and  his  successors  in  title  under  the  hereinbefore  recited 
indenture  of  settlement].  ^Clauses  restricting  covenants  for  title  and 
acknowledgment  and  undertaking  as  to  Court  rolls  and  title-deeds  of  manor, 
Precedent  IX.,  supa-^  [or,  if  so  intended,  "Provided  always  that 
the  said  [tenant  for  life]  and  his  successors  in  title,  lords  of  the  manor, 
shall  not  be  required  to  produce  any  of  the  deeds  or  documents  of 
title  relating  to,  or  the  court  rolls  of  the  said  manor  to  the  said 
[copyholder],  his  heirs  or  assigns,  any  law  or  usage  to  the  contrary 
notwithstanding  "]. 
In  witness,  &c. 

XIIL  CONVEYANCE  by  Tenant/ot  Life  under  Settled  Land  Ad,  1882, 
of  Easements  theretofore  enjoyed  with  Part  of  Settled  Land. 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [tejiant  for  life],  of,  &c.,  of  the  first  part ;  [trustees],  of,  &c.,  of 
the  second  part ;  and  [purchaser],  of,  &c.,  of  the  third  part ;  Whereas 
the  owners  and  occupiers  of  the  messuages  and  hereditaments  herein- 
after described  are  entitled  to  and  have  always  enjoyed  the  right  of  free 
and  uninterrupted  access  of  light  and  air  to  certain  ancient  windows  in 
the  southern  wall  of  such  messuages ;  And  whereas  by  an  indenture, 
dated,  &c.,  and  made,  &c.,  the  right  of  way  hereinafter  described  was, 
amongst  other  hereditaments,  granted  unto  [settlor],  his  heirs  and  assigns ; 
And  whereas  [recite  settlement,  showing  that  the  trustees  thereof  are  trustees 
with  power  of  sale,  or  with  power  to  consent,  &c.,  to  a  sale,  and  that  the  tenant 
for  life  is,  w  has  the  power  of,  a  tenant  for  life  thereunder] ;  And  whereas 
the  said  [tenant  for  life],  as  such  tenant  for  life  as  aforesaid,  has  agreed 
with  the  said  [purchaser]  for  the  sale  to  him  of  the  easements  and 
hereditaments  hereinafter  conveyed  at  the  price  of  £  [agreement 

for  acknowledgment  and  undertaking  as  to  title-deeds].  NOW  THIS 
INDENTURE  WITNESSETH  that,  in  pursuance  of  the  said  agree- 
ment, and  in  consideiatiou  of  the  sum  of  £  now  paid  to  the  said 


282     SETTLED  LAND  ACTS  AND  POWEES— PRECEDENTS 

[tritstees]  by  the  said  [purchaser],  of  which  sum  of  £  the  said  [tntstees] 

and  the  said  [tenant  for  life]  hereby  acknowledge  the  receipt  and  pay- 
ment in  manner  aforesaid  respectively,  the  said  [tenant  fw  life],  by  virtue 
and  in  exercise  of  the  powers  conferred  upon  him  by  the  Settled  Land 
Act,  1882,  and  of  every  or  any  other  power  enabling  him  in  that 
behalf,  hereby  as  beneficial  owner  conveys  unto  the  said  [purchaser], 
Firstly,  All  that  easement  or  right  to  the  free  and  uninterrupted 
access  of  light  and  air  to  the  several  windows  in  the  southern  side  of  the 
several  messuages  or  tenements  situate  and  being  in  Street,  in 

the  parish  of  ,  in  the  county  of  ,  and  abutting  upon 

a  yard  in  the  same  parish,  the  property  of  the  said  [purchaser],  all  which 
messuages  with  their  abuttals  upon  the  said  yard  and  the  said  yard  are 
more  particularly  delineated  in  the  map  or  plan  thereof  drawn  in  the 
margin  of  these  presents,  and  are  therein  distinguished  as  to  the  said 
messuages  by  the  colour  ,  and  as  to  the  said  yard  by  the 

colour  ;  And  secondly.  All  that  the  easement  or  right  of 

way  for  ingress,  egress,  and  regress  for  horses,  carriages,  carts,  and 
waggons,  and  for  all  manner  of  cattle  and  persons  on  foot,  from  the 
point  of  the  said  map  or  plan  marked  with  the  letter  A,  upon  and  over 
the  said  yard  to  the  road  or  street  in  the  said  parish  of  known 

as  the  Street,  To  hold  all  the  premises  unto  and  to  the 

USE  of  the  said  [purchaser],  his  heirs  and  assigns,  to  the  intent  that  the 
said  easements  or  rights  to  light  and  of  way  may  henceforth  cease  and 
be  extinguished. — [Add,  if  desired,  proviso  restricting  covenants  for  title,  and 
acknowledgment  and  undertaking  as  to  title-deeds,  ante,  Precedent  IX.,  sup^a.] 

XIV,  CONVEYANCE  by  Tenant /w  Life,  ivith  Leave  of  the  Court  under 
the  Settled  Land  Acts,  1882  and  1884,  of  Lands  Settled  upon  Trust 
fw  Sale} 

THIS  INDENTURE,  made  the  day  of  19    , 

Between  [tenant for  life],  of,  &c.,  of  the  first  part;  [trustees],  of,  &c.,  of 
the  second  part ;  and  [purchaser],  of,  &c.,  of  the  third  part :  Whereas 
[testator],  late  of,  &c.,  deceased,  duly  made  his  will,  dated,  &c.,  and 
thereby  devised  (amongst  other  hereditaments)  the  lands  and  heredita- 
ments hereby  conveyed  unto  and  to  the  use  of  [trustees],  their  heirs  and 
assigns,  upon  trust  that  the  said  trustees,  or  the  survivors  or  survivor  of 
them,  or  the  heirs  of  such  survivor  should,  with  such  consents  or  at  such 
discretion  as  therein  mentioned,  sell  the  same  in  manner  therein  men- 
tioned, and  should  stand  possessed  of  the  net  moneys  to  arise  from  any 
such  sale  as  therein  mentioned.  Upon  trust  for  the  said  [tenant  for  life] 
during  his  life,  and  after  his  death  upon  such  trusts  as  are  therein  men" 
tioned ;  And  whereas  [recite  death  of  testator,  and  p-obate  of  his  tvill] ; 
And  whereas  [recite  order  of  Court  appointing  trustees  of  will  to  be  trustees 
of  the  settlement  for  the  purposes  of  the  Settled  Land  Acts] ;  And  whereas 
by  another  order  of  the  Chancery  Division  of  His  Majesty's  High  Court 
of  Justice,  dated,  &c.,  and  made  by  ,  In  the  matter,  &c., 

it  was  ordered  that  the  said  [tenant  for  life]  be  at  liberty  to  exer- 
cise, in  respect  to  the  lands  and  hereditaments  comprised  in  the  said 

1  See  Settled  Land  Act,  1882,  s.  63,  and  Settled  Land  Act,  1884,  s.  7. 


SETTLED  LAND  ACTS  AND  POWERS— PRECEDENTS    283 

settlement,  the  powers  of  sale  and  conveyance  conferred  by  the 
63rd  section  of  the  Settled  Land  Act,  1882;  And  whereas 
the  said  [tenant  fm-  life]  in  exercise  of  the  powers  conferred  upon 
him  by  the  Settled  Land  Act,  1882,  and  the  Settled  Land  Act, 
1884,  and  by  the  hereinbefore  recited  order  of  the  day  of 

19     ,  has  agreed  with  the  said  \_purchasei-]  for  the  sale  to  him 
of  the  said  lands  and  hereditaments  hereby  conveyed  and  the  inherit- 
ance thereof  in  fee  simple  in  possession,  at   the   price   of   £ 
NOW  THIS  INDENTURE  WITNESSETH  that,  in  pursuance  of  the 
said  agreement,  and  in  consideration  of  the  sum  of  £  now  paid  to 

the  said  \i'i~ustees\,  by  the  said  [purchasei-],  of  which  sum  of  £ 
the  said  [trustees]  and  the  said  \tenunt  far  life]  hereby  acknowledge 
the  receipt  and  payment  in  manner  aforesaid  respectively,  the  said 
[tenant  for  life],  by  virtue  and  in  exercise  of  the  powers  conferred  on 
him  by  the  63rd  section  of  the  Settled  Land  Act,  1882,  and  the  herein- 
before recited  order  of  the  day  of  19  j  a"d  of 
all  other  powers  thereunto  him  enabling,  hereby  as  beneficial  owner 
conveys,  and  the  said  [trustees]  do  hereby  as  trustees  convey  unto  the 
said  [purchaser]  and  his  heirs.  All  that  [describe  parcels],  To  HOLD  all 
the  premises  UNTO  AND  TO  THE  USE  of  the  said  [purchaser],  his  heirs 
and  assigns.  Freed  and  discharged,  &c.  (ut  ante,  Precedent  IX.  supi-a). 
In  witness,  &c. 

XV.  CONVEYANCE  in  Fee  of  Freeholds  by  a  Tenant  by  the  Curtesy, 
with  the  Consent  of  an  Assignee  fm-  Value  of  the  such  Estate  by  the  curtesy. 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [tenant  by  the  curtesy],  of,  &c.,  of  the  first  part ;  [mortgagee],  of, 
&c.,  of  the  second  part;  [trustee],  of,  <fec.,  and  [trustee],  of,  &c.,  of  the 
third  part;  and  [purchaser],  of,  &c.,  of  the  fourth  part:  Whereas 
[testator],  late  of,  &c.,  deceased,  duly  made  his  will,  dated,  &c.,  and 
thereby,  after  specifically  devising  certain  lands  and  hereditaments 
which  did  not  include  the  lands  and  hereditaments  hereby  conveyed, 
gave,  devised,  and  bequeathed  all  the  rest,  residue,  and  remainder  of 
his  real  and  personal  estate,  whatsoever  and  wheresoever  situate,  unto 
his  daughter  [A.  B.],  the  wife  of  the  said  [tenant  by  the  curtesy],  and  her 
heirs  and  assigns :  And  whereas  [recite  death  and  seisin  of  testator,  and 
pi-obate  of  his  loill,  Precedent  VIIL,  supra] :  And  whereas  there  was  issue 
of  the  marriage  between  the  said  [A.  B.]  and  the  said  [tenant  by  the  curtesy], 
one  child  only,  namely  [C.  B.] ;  And  whereas  the  said  [A.  B.]  died  on  the 
day  of  19     ,  intestate  :  And  whereas  the  said  [C.  B.] 

died  on  the  day  of  19     ,  without  having  attained  the 

age  of  twenty-one  years,  and  without  having  been  married :  And 
WHEREAS,  by  an  indenture  of  mortgage  dated,  &c.,  and  made,  &c.,  the 
said  [tenant  by  the  curtesy]  conveyed  the  said  hereditaments  hereinafter 
described  unto  and  to  the  use  of  the  said  [moftgagee]  for  the  life  of  the 
said  [tenant  by  the  curtesy],  by  way  of  mortgage  to  secure  to  the  said 
[mortgagee]  the  payment  to  him,  on  the  day  of  then 

next,  the  sum  of  £>  with  interest  as  therein  mentioned  :  And 

WHEREAS,  by  an  order  of  the  Chancery  Division  of  His  Majesty's  High 


284    SETTLED  LAND  ACTS  AND  POWERS— PEECEDENTS 

Court  of  Justice,  made  in  the  matter  of,  &c.,  and  in  the  matter  of  the 
Settled  Land  Acts,  1882  to  1890,  by  Mr.  Justice  M.,  on  the 
day  of  19     J  the  said  [trustees]  were  appointed  to  be  trustees 

of  the  settlement  created  by  the  said  will :  And  whereas  the  said 
[tenant  hy  the  curtesy]  has  agreed  with  the  said  [purchaser]  for  the  sale  to 
him  of  the  said  lands  and  hereditaments  in  fee  simple  in  possession  free 
from  incumbrances,  at  the  price  of  £  :  and  the  said  [mortgagee] 

has  agreed  to  concur  in  these  presents  for  the  purpose  and  in  manner 
hereinafter  appearing,  to  the  intent  that  the  said  purchase-money  may 
become  subject  to  the  said  mortgage  in  substitution  for  the  said  lands 
and  hereditaments  hereby  conveyed:  NOW  THIS  INDENTURE 
WITNESSETH,  that  in  pursuance  of  the  said  agreement,  and  in  con- 
sideration of  the  sum  of  £  now  paid  by  the  said  [purchaser],  by 
the  direction  of  the  said  [tenant  hy  the  curtesy],  and  with  the  consent  of 
the  said  [maiigagee],  testified  by  their  executing  these  presents  respec- 
tively, to  the  said  [t7~ustees],  of  which  sum  of  £  the  said  [tmstees] 
and  the  said  [tenant  by  the  curtesy]  and  [mortgagee]  hereby  acknowledge 
the  receipt  and  payment  as  aforesaid  respectively,  the  said  [tenant  by  the 
curtesy],  with  the  consent  of  the  said  [mortgagee],  testified  as  aforesaid,^ 
hereby  as  beneficial  owner  conveys,  and  the  said  [mortgagee]  hereby  as 
mortgagee  conveys  and  confirms,  unto  the  said  [purchaser]  and  his  heirs, 
All  that  [describe  ^parcels].  To  hold  all  the  premises  unto  and  to  the 
USE  of  the  said  [purchaser],  his  heirs  and  assigns,  Freed  and  discharged 
from  all  right  and  equity  of  redemption  and  all  claims  and  demands 
heretofore  subsisting  therein,  under  or  by  virtue  of  the  said  mortgage  : 
And  also  freed  and  discharged,  &c.  [ante,  Precedent  IX.]. 
In  witness,  &c. 

XVI.  CONVEYANCE  under  the  Settled  Land  Acts  of  Freeholds  to 
which  an  Infant  is  Absolutely  Entitled  in  Fee  Simple. 

THIS  INDENTURE,  made  the  day  of  19    , 

Between  [vendor],  of,  &c.,  and  [vendor],  of,  &c.,  of  the  one  part,  and 
[jpurcliaser],  of,  &c.,  of  the  other  part :  Whereas  [testator],  late  of,  &c., 
deceased,  made  and  executed  his  will,  dated,  &c.,  and  thereby  ordered 
that  all  his  debts  should  be  paid,  and  with  the  payment  thereof  did 
charge  all  his  estate ;  And,  subject  thereto,  the  said  [testator]  gave, 
devised,  and  bequeathed.  All  his  real  and  personal  estate,  of  what 
nature  or  kind  soever  and  wheresoever,  unto  his  son  [infant],  his  heirs, 
executors,  administrators,  and  assigns,  but  the  said  will  contained  no 
power  of  sale  of  the  hereditaments  thereby  devised,  nor  any  appointment 
of  any  persons  to  be  the  trustees  thereof  for  the  purposes  of  the  Settled 
Land  Acts  :  And  whereas  the  said  [testator]  died  on  the  day 

of  19     ,  seised  of  the  lands  and  hereditaments  hereby  conveyed 

1  By  sec.  50  (3)  of  the  Act  of  1882  the  powers  of  a  "  tenant  for  life  "  are  not 
to  prejudice  the  rights  of  an  assignee  for  value  of  his  estate  or  interest,  and,  in 
that  case,  the  assignee's  rights  are  not  to  be  affected  without  his  consent.  The 
mere  consent  of  the  assignee  would  not,  however,  in  the  present  case  seem  to 
be  sufficient  without  a  conveyance  by  way  of  confirmation  on  his  part  (see  sec.  20, 
subs.  2  (ii.)) ;  his  security  will  attach  to  the  pu.rchase-nioney  in  the  hands  of 
the  trustees,  and  the  investments  thereof  (see  sec.  22,  subs.  5). 


SETTLED  LAND  ACTS  AND  POWEES— PRECEDENTS     285 

(together  with  other  hereditaments)  in  fee,  free  from  incumbrances,  and 
his  said  will  was,  on  the  day  of  19     ,  proved  in 

the  Principal  Registry  of  His  Majesty's  High  Court  of  Justice,  Probate 
Division :  And  whereas  the  debts  of  the  said  [testator]  have  all  been 
fully  paid  and  satisfied :  And  whereas  the  said  [infant]  is  an  infant 
under  the  age  of  twenty-one  years  :  And  whereas,  by  an  order  of  the 
Chancery  Division  of  His  Majesty's  High  Court  of  Justice,  made  on 
the  day  of  19     ,  by  Mr.  Justice  ,  In  the 

matter  of,  &c.,  it  was  ordered  that  during  the  minority  of  the  said 
[infant],  that  the  powers  of  sale  and  conveyance,  and  other  powers 
conferred  on  tenants  for  life  by  the  Settled  Land  Acts,  1882  to  1890, 
might  be  exercised  by  the  said  [vendors]  on  behalf  of  the  said  [infant] 
during  his  minority  over  or  in  relation  to  his  said  estate ;  And  it  was 
thereby  further  ordered  that  all  moneys  which  should  from  time  to 
time  be  paid  in  respect  of  the  exercise  of  the  said  powers  of  sale  and 
conveyance  by  the  said  [vendors]  should  be  paid  into  Court  to  the  credit 
of  an  account  intituled,  &c. :  And  whereas  the  said  [vendois],  in 
exercise  of  the  said  powers  vested  in  them  by  the  said  order,  have 
agreed  with  the  said  [purchase)-]  for  the  sale  to  him  of  the  said  lands 
and  hereditaments  hereby  conveyed  in  fee  simple  in  possession,  free 
from  incumbrances,  at  the  price  of  £  :  And  whereas,  pursuant 

to  the  hereinbefore-recited  order,  the  sum  of  £  ,  being  the 

amount  of  the  purchase-money  so  agreed  upon  as  aforesaid,  was,  on 
the  day  of  19     ,  paid  into  Court  to  the  credit  of 

the  said  account :  And  whereas  the  deeds  and  muniments  of  title 
specified  in  the  schedule  hereunder  written  relate  not  only  to  the  lands 
and  hereditaments  hereby  conveyed,  but  also  to  other  hereditaments 
formerly  of  the  said  testator,  but  now  of  the  said  [infant] ;  And  it  has 
been  agreed  that  such  deeds  and  muniments  shall  be  retained  by  the 
said  [infant],  and  that  the  said  [vendors]  shall  enter  on  his  behalf  into 
such  acknowledgment  [and  undertaking]  in  relation  thereto  as  is  here- 
inafter contained :  NOW  THIS  INDENTURE  WITNESSETH,  that, 
for  effectuating  the  said  contract,  and  in  consideration  of  the  sum  of 
£  so  paid  by  the  said  [purchaser]  into  Court  as  aforesaid,  the 

payment  of  which  sum  of  £  the  said  [vendors]  hereby  acknow- 

ledge, they  the  said  [vendors],  by  virtue  and  in  exercise  of  the  powers 
conferred  upon  tenants  for  life  under  the  Settled  Land  Acts,  1882  to 
1890,  and  vested  in  them  by  the  hereinbefore-recited  order  of  the 
day  of  19     ,  and  of  every  or  any  other  power 

enabling  them  in  this  behalf,  do  hereby  on  behalf  of  the  said  [infant] 
as  trustees,  convey  unto  the  said  [^rchaser]  All  and  singular  [describe 
parcels],  To  HOLD  all  the  premises  unto  and  to  the  use  of  the  said 
[purchaser],  his  heirs  and  assigns :  And  the  said  [vendors]  hereby,  on 
behalf  of  themselves,  and  also  (so  far  as  they  lawfully  may  or  can)  of 
the  said  infant,  acknowledge  the  right  of  the  said  purchaser  to  production 
of  the  deeds  and  muniments  of  title  specified  in  the  schedule  hereunder 
written,  and  to  delivery  of  copies  thereof  [and  hereby  undertake  for  the 
safe  custody  of  the  same,  but  so  long  only  as  they  shall  be  in  their  own 
actual  possession]. 
In  witness,  &c. 

The  Schedule  above  referred  to. 


286    SETTLED  LAND  ACTS  AND  POWEES— PRECEDENTS 

XVIL  CONVEYANCE  to  the  Uses  of  a  Settlement  m  Purchase 
under  Settled  Land  Acts  of  Freehold  Reversion  on  Leaseholds 
forming  Part  of  the  Settled  Lands. 

THIS  INDENTURE,  made  the  '        day  of  19     , 

Between  [vendor],  of,  &c.,  of  the  first  part ;  [tenant  for  life],  of,  &c.,  of 
the  second  part ;  and  [tnistee],  of,  &c.,  and  [trustee],  of,  &c.,  of  the  third 
part :  Whereas  the  said  [vendor]  is  seised  of  or  entitled  to  the  fee 
simple,  free  from  incumbrances,  of  the  lands  and  hereditaments  hereby 
conveyed,  but  subject  to  the  several  leases  specified  in  the  schedule 
hereunder  written,  and  to  the  respective  terms  of  years  thereby  created ; 
And  whereas  by  an  indenture,  dated,  &c.,  and  made,  &c.,  certain 
freehold  lands  and  hereditaments  therein  mentioned  were  granted  and 
assured  unto  the  said  [trustees]  and  their  heirs  to  the  use  of  the  said 
[tenant  for  life]  during  his  life,  with  remainders  over :  And  by  the  same 
indenture  the  lands  and  hereditaments  comprised  in  and  demised  by  the 
said  several  leases  specified  in  the  said  schedule  hereunder  written  were 
assigned  unto  the  said  [trustees],  their  executors,  administrators,  and 
assigns,  to  hold  all  the  same  premises  unto  the  said  [trustees],  their 
executors,  administrators,  and  assigns,  for  all  the  respective  residues  of 
the  several  terms  of  years,  at  the  rents  and  subject  to  the  covenants  on 
the  part  of  the  several  lessees  and  conditions  in  and  by  the  several  leases 
specified  in  the  said  schedule  hereunder  written  respectively  reserved 
and  contained  upon  trust  that  they  the  said  [trustees],  and  the  survivor 
of  them,  and  the  executors  or  administrators  of  such  survivor,  their  or 
his  assigns,  should,  out  of  the  rents  and  profits  of  the  same  premises, 
pay  the  said  rents  respectively,  and  should  perform  and  observe  the  said 
covenants  and  conditions  respectively,  and  subject  thereto  Upon  such 
trusts  and  with  and  subject  to  such  powers,  provisos,  declarations,  and 
agreements  as  should  best  correspond  with  the  uses,  trusts,  powers, 
provisos,  declarations,  and  agreements  thereinbefore  limited  and  declared 
of  and  concerning  the  said  lands  and  hereditaments  thereby  granted  as 
nearly  as  the  different  tenure  and  quality  of  the  premises  and  the  rules 
of  law  and  equity  would  permit,  but  not  so  as  to  increase  or  multiply 
charges,  or  powers  of  charging,  and  so,  nevertheless,  that  the  same 
premises  should  not  vest  absolutely  in  any  person  thereby  made  tenant 
in  tail  male  by  purchase  of  the  said  lands  and  hereditaments  thereby 
granted,  unless  he  should  attain  the  age  of  twenty-one  years,  but  on 
his  death  under  that  age  should  go,  devolve,  and  remain  in  the  same 
manner  as  if  they  had  been  freeholds  of  inheritance  included  in  the 
grant  and  limitations  thereinbefore  contained :  And  it  was  by  the 
indenture  now  in  recital  declared  that  the  said  [trustees]  should  be 
the  trustees  thereof  for  the  purposes  of  the  Settled  Land  Acts,  1882 
to  1 890 :  And  whereas  the  said  [tenant  for  life],  by  virtue  of  the 
powers  conferred  on  him  by  the  Settled  Land  Acts,  1882  to  1890,  has 
agreed  with  the  said  [vendor]  for  the  purchase  of  the  said  lands  and 
hereditaments  hereby  conveyed  in  fee  simple  free  from  incumbrances, 
but  subject  as  aforesaid,  for  the  price  of  £  ,  and  has  directed 

the  said  [trustees],  as  such  trustees  as  aforesaid,  to  apply  capital  moneys 
in  their  hands  as  such  trustees  arising  under  the  said  Act  from  sales 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPEETY        287 

from  time  to  time  effected  of  lands  and  hereditaments  comprised  in  the 
hereinbefore-recited  indenture  of  settlement  in  payment  of  the  said  price 
or  sum  of  £  .    NOW  THIS  INDENTURE  WITNESSETH 

that,  in  pursuance  of  the  said  agreement,  and  in  consideration  of  the 
sum  of  £  now  paid  by  the  said  [trustees]  at  the  direction  of  the 

said  [tenant  for  life]  out  of  such  capital  moneys  as  aforesaid  to  the  said 
[vendor],  of  which  sum  of  £  the  said  [vendor]  hereby  acknow- 

ledges the  receipt,  the  said  [vendm-]  by  the  direction  of  the  said  [tenant 
/w  life]  hereby  as  beneficial  owner  conveys  unto  the  said  [trustees]  and 
their  heirs.  All  those  the  several  pieces  or  parcels  of  land  respectively 
comprised  in  and  demised  by  the  several  leases  respectively  specified  in 
the  said  schedule  hereunder  written.  To  hold  all  the  premises  unto  the 
said  [timstees]  and  their  heirs,  subject  to  the  respective  terms  of  years 
therein  created  by  the  said  several  leases  respectively,  To  such  uses, 
upon  such  trusts,  and  subject  to  such  powers  and  provisions  as  under 
the  hereinbefore-recited  indenture  of  settlement,  or  by  reason  of  any 
power  of  charging  therein  contained,  are  subsisting  with  regard  to  the 
said  lands  and  hereditaments  thereby  granted,  or  as  near  thereto  as 
circumstances  permit,  but  not  so  as  to  increase  or  multiply  charges  or 
powers  of  charging,  To  the  intent  that  the  said  several  terms  may  be 
henceforth  merged  in  and  consolidated  with  the  reversion  and  inherit- 
ance in  fee  simple  of  the  same  premises  respectively  expectant  on  the 
determination  of  the  said  terms  respectively. 
In  witness,  &c. 

The  Schedule  above  referred  to. 


Settlement,  Act  of. — See  Act  of  Settlement. 
Settlement  of  Poor.— See  Poor  Law. 


Settlements ;  Settlements  of  Property. 

TABLE  OF  CONTENTS. 


Definitions  of  "  Settlement  "         .    288 

Possible  Duration  of  Settlements  .    289 

Objects  of  and  Objections  to  Settle- 
ments   290 

Settlors 291 

Disabilities      .        .        .        .291 

Infancy 292 

Wards  of  Court        .         .         .293 
Characters    of  Settlements    ap- 
proved on  Marriages  of  Wards 
of  Courts      .         .        .        .293 
Clandestine  Marriages      .        .    294 

Executory  Settlements  .        .        .    294 

Occasions  for  Settlements      .        .    294 

Subjects  of  Settlement  .        .        .    295 

Real    Property    and    Personal 
Property       ....     295 


Corporeal  Clmttels     .        .        .  296 
Money  to  he  paid  at  a  Future 

Date 296 

Life  Policies     ....  296 


Marriage  Settlements 


.    296 


Fraud  on  Marital  Right  .        .  297 

Consideration  of  Marriage         .  297 

Preliminary  Limitation   .        .  297 

Wife's  Personalty,  Life  Interests  297 

Trusts  for  Issue         .        .        .  298 

Hotchpot 299 

Advancement  ....  299 
Maintenance,  Accumulation  .  299 
Trusts  in  Default  of  Issue  .  300 
Husband^s  Personalty  .  .  301 
Administrative  Powers,  Invest- 
ment, etc 301 

Investment        ....  301 

Appointing  New  Trustees  .        .  303 
Covenants  to  Settle  After-acquired 

Property       ....  303 


288         SETTLEMENTS;  SETTLEMENTS  OF  PEOPEETY 


Provisions  for   Contingency   of 

another  Marriage .  .  .  304 
Settlements  of  Land  .  .  .  304 
Covenants  for  Title  .  .  .  304 
Pin-Money  ....  304 
Life  Estate  .  .  .  .304 
Jointure  .....  305 
Portions  Term  ....  305 
Remainders  to  Issue  in  Tail  .  305 
Limitations  to  Trustees  to  Pre- 
serve Contingent  Remainders .  307 
Trusts  of  Portimis  Term  .  .  307 
Provisions  for  anotlur  Marriage  309 
Statutory  A  dministrative  Powers  310 

Family    Settlements  ;     Resettle- 
ments    310 


Name  and  Arms,  and  Oi-hee  Shiftino 
Clauses       .        .        .        .        .    312 


Voluntary  Settlements  . 
Post-Nuptial  Settlements 
Separation  Deeds    . 


313 

314 
314 


Settlements  on  Divorce  and  Judicial 
Separation 315 

Dum  casta  vixerit  Clause  .        .317 
Duties  of  Advisers  of  Settlors       .    317 

Stamps 319 

Precedents 319 


Definitions  of  "Settlement." 

The  word  "  settlement "  in  the  sense  in  which  it  is  here  used  has  not 
been  defined  in  terms  recognised  as  generally  applicable,  though  several 
statutes  contain  definitions  of  it  for  the  purposes  of  those  Acts  of  Parlia- 
ment. In  order  to  understand  its  meaning  the  continuance  in  time  of  the 
right  we  call  property  must  be  borne  in  mind.  Full  ownership  in  English 
law  lasts,  potentially,  for  ever,  and,  according  to  any  law,  continuance  of 
the  right  for  some  period  must  be  necessary  to  even  partial  ownership. 
That  some  subject  of  property  is  "settled,"  or  "in  settlement,"  means 
that  the  property  in  it  during  successive  periods  is  distributed  among 
several  owners  for  those  periods  respectively,  and  it  often  happens  that 
during  one  or  several  of  those  periods  the  ownership  is  also  distributed 
among  several  persons  whose  periods  of  enjoyment  are  wholly  or  partially 
concurrent. 

Life  estates,  estates  tail,  and  estates  in  fee  taking  effect  consecutively 
in  land,  and  life  interests,  followed  by  expectant  ownerships  in  perpetuity, 
in  personalty,  are  familiar  instances  of  one  mode  of  division,  and  tenancies 
in  common  and  estates  in  possession,  subject  to  annuities  for  pin-money 
or  jointure,  illustrate  the  other.  But  while  provisions  for  concurrent 
enjoyment  are  frequently  found  in  settlements,  provisions  for  successive 
enjoyment  are  those  which  distinguish  a  settlement  from  other  dispositions 
of  property. 

In  the  Lands  Clauses  Consolidation  Act,  1845,  s.  69,  the  word 
"  settled "  means  simply  "  standing  limited "  (Jessel,  M.E.,  1877, 
6  Ch.  D.  494),  and  in  the  Bankruptcy  Act,  1883,  s.  47,  "settlement" 
"  includes  any  conveyance  or  transfer  of  property ; "  but  see  Vaughan 
Williams,  J.,  [1893]  2  Q.  B.  380.  The  Fines  and  Eecoveries  Act,  1833 ; 
the  now  repealed  Leases  and  Sales  of  Settled  Estates  Acts  of  1856  and 
1858 ;  the  Settled  Estates  Act,  1877 ;  the  Settled  Land  Act,  1882 ;  and 
the  Finance  Act,  1894,  on  the  other  hand,  contain  definitions  of  the 
word  "  settlement "  which  are  almost  wholly  alike,  and  generally  agree 
with  the  above-given  description  of  its  meaning.  The  Stamp  Acts, 
imposing  an  ad  valorem  duty  on  every  instrument,  whereby  any  definite 
and  certain  principal  sum  of  money  ...  or  stock,  or  any  security  is 
settled  or  agreed  to  be  settled,  have  not  defined  the  word  "  settled  " 
(54  &  55  Vict.  c.  39,  Sched.  Settlement,  ss.  104-106).  The  stamp  is 
understood  not  to  be  needed  on  a  declaration  of  trust  for  alienable 
separate  use  or  for  payment  of  an  annuity  out  of  income  (Alpe,  Stamp 
Duties,  9th  ed.,  199). 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY         289 

The  preceding  sentences  show  that  the  word  "  settlement "  is  used  not 
only  to  denote  the  above-stated  abstract  idea,  but  also  the  act  of  giving 
such  a  destination  of  rights,  or  the  fact  of  their  being  given,  or  the  written 
document,  or  documents  which  describe  the  gifts.  Thus  we  say  that  a 
Court  directs  the  settlement  of  certain  property,  or  that  a  specified  subject 
of  property  is  in  settlement,  or  that  someone  has  made  a  settlement,  or 
that  a  particular  deed  is  a  settlement. 

Possible  Dueation  of  Settlements. 

Generally  speaking,  a  right  to  alienate  is  in  English  law  an  insepar- 
able incident  of  ownership  (Co.  Litt.  223a),  and  the  exceptions,  though 
important,  do  not  need  notice  here.  Moreover,  the  right  to  alienate 
authorises  partial  as  well  as  total  alienations  of  the  alienor's  property. 
A  tenant  in  fee  can  lease  for  years.  This  right  of  alienation,  if  unqualified, 
would  have  enabled  owners  in  perpetuity  to  create  in  perpetuity  a  series 
of  rights  to  enjoyment  of  the  subject  by  specified  persons  during  succes- 
sive periods ;  but  to  have  permitted  such  alienations  would  have  been 
to  permit  the  generally  given  right  of  alienation  to  be  exhausted  by  a 
single  exercise  of  it.  To  the  fathers  of  the  law,  apparently,  it  seemed 
clear  that  though  the  right  of  owners  to  divide  and  distribute  their  right 
during  some  successive  periods  might  be  generally  beneficial,  it  would  be 
pernicious  to  permit  it  to  be  so  exercised  as  that  by  one  transaction  the 
ownership  of  one  subject  might  be  determined  for  all  future  time.  They 
accordingly  discovered  in  gremio  legis,  and  duly  enunciated,  the  rule 
against  perpetuities  and  its  ancillary  rule  or  rules.  The  principal  rule 
prohibits  every  limitation  which  may  not  vest  until  after  the  determina- 
tion of  a  life  or  lives  in  being  when  the  limitation  is  created,  or  within 
twenty-one  years  afterwards ;  and  where  gestation  exists,  the  period  of 
gestation  {Cadell  v.  Palmer,  1833,  1  CI.  &  Fin.  372,  411,  412,  421,  422  ; 
6  E.  R  956 ;  36  R.  Pt.  128).  The  ancillary  rule  is,  that  if  an  estate  be 
limited  to  an  unborn  person  for  life,  and  afterwards  to  a  child  of  that 
person,  the  limitation  to  that  child  is  void  ( Whitby  v.  Mitchell,  1890, 
44  Ch.  D.  85) — a  rule  sometimes  treated  as  a  particular  application  of  a 
more  general  one,  to  the  effect  that  a  possibility  cannot  be  limited  on  a 
possibility  (1889,  43  Ch.  D.  252).  See  Contingent  Remainders  ;  Per- 
petuity. The  argument  against  the  existence  of  the  above-mentioned 
ancillary  rule  has  been  recently  and  very  forcibly  stated  by  Mr.  T.  Cyprian 
Williams,  14  Law  Quarterly  Review,  234 ;  and  that  in  support  of  it  by 
Mr.  Charles  Sweet,  15  ibid.,  71.  See  also,  more  recently,  49  Solicitors* 
Journal,  by  H.  W.  E.,  360,  379,  397,  and  Mr.  Charles  Sweet,  414,  793. 

Besides  those  judicially  established  restrictions  of  the  period  during 
which  the  corpus  of  property  may  be  settled,  Parliament  has  defined 
periods  after  the  expiration  of  which  yearly  produce  may  not  be 
accumulated.  That  legislation  was  provoked  by  the  celebrated  will 
of  Peter  Thellusson,  who  died  in  1797.  He,  availing  himself  of  the 
permission  afforded  by  the  rule  against  perpetuities  to  postpone  the 
vesting  of  his  property  absolutely  until  the  expiration  of  the  lives  of 
such  of  his  descendants  as  should  be  living  at  his  death  and  twenty- 
one  years  afterwards,  directed  that  the  bulk  of  its  yearly  produce  during 
the  same  period  should  be  accumulated,  and  made  to  follow  the  destina- 
tion of  the  corpus.  Lord  Loughborough,  C,  established  the  will  in  1799, 
and  six  years  later  the  House  of  Lords  affirmed  his  decree,  but  in  1800, 
without  waiting  for  that  affirmance,  he  introduced  and  passed  a  bill  pro- 
VOL.  xin.  19 


/ 


290         SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY 

hibiting  accumulation  during  a  longer  term  than  the  life  or  lives  of  the 
settlor  or  settlors,  or  twenty-one  years  from  the  death  of  any  such  settlor, 
or  the  minorities  of  persons  living  or  en  ventre  sa  mdre  at  his  death,  or 
the  minorities  of  persons  who,  under  the  assurance  directing  the  accumu- 
lation would,  for  the  time  being,  if  of  full  age,  be  entitled  to  the  annual 
produce  directed  to  be  accumulated.  The  prohibition  was  not  to  extend 
to  certain  provisions  for  payment  of  debts,  or  for  raising  portions  for 
specified  classes  of  children,  or  to  any  direction  touching  the  produce  of 
timber  or  wood.  The  Accumulations  Act,  1892,  has  prohibited  accumu- 
lation "  for  the  purchase  of  land  only  "  for  any  longer  period  than  the 
fourth  of  those  described  in  the  Thellusson  Act.     See  Accumulations. 

The  limits  within  which  the  vesting  of  interests  and  accumulation 
of  income  are  permitted  by  the  above-mentioned  rules  nearly  coincide 
with  those  of  the  periods  for  which  the  facts  of  life  ordinarily  require 
settlements  to  last.  The  life  or  lives  in  being  are  most  frequently 
represented  by  those  of  a  young  couple  about  to  marry,  or  that  of  the 
immediate  object  of  a  testator's  or  other  donor's  bounty,  and  the  twenty- 
one  years  correspond  with  the  minorities  of  the  children  of  the  supposed 
intended  marriage  or  object  of  bounty. 

Objects  of  and  Objections  to  Settlements. 

Marriage  settlements  constitute  at  once  the  most  numerous  and  the 
typical  class  of  settlement.  By  such  a  settlement,  provision  is  usually 
made  for  the  spouses  during  their  lives  by  means  of  the  possession,  or 
the  receipt  of  the  rents  and  profits  of  land,  or  the  possession  and  use 
of  corporeal  chattels,  or  the  yearly  produce  of  investments.  After  the 
death  of  the  survivor  of  them,  or  rather,  subject  to  the  interests  given 
to  one  or  both  of  them,  the  property  is  secured  to  issue  of  the  marriage, 
and  other  destinations  are  usually  given  to  the  property  to  take  efi'ect 
in  the  event  of  there  not  being  any  such  issue.  Those  destinations 
usually  are,  as  nearly  as  may  be,  restorations  of  the  ownerships  which 
had  been  parted  with  in  order  to  constitute  the  settlement. 

To  make  such  dispositions  in  contemplation  of  marriage  and  in  some 
other  cases  is  very  generally  thought  prudent.  Objections,  however, 
have  been  made  to  the  practice.  One  is  that  a  disposition  which  secures 
property  to  a  child  weakens  its  parents'  authority  over  that  child; 
another,  that  true  prudence  would  rely  rather  on  character  than  on 
settlements.  The  objection  is  put  to  a  father  thus :  you  intrust  your 
daughter  to  her  intended  husband,  can  you  not  then  intrust  her  property 
to  him  ?  A  third  is,  that  settlements,  in  effecting  the  object  for  which 
they  are  designed — that  of  hindering  the  pecuniary  ruin  of  families — 
are  not  beneficial  but  pernicious  to  the  commonwealth.  The  permissi- 
bility and  large  use  of  settlements  within  the  above-mentioned  limits 
show  the  prevalence  of  the  opinion  in  favour  of  their  use,  which  has 
hitherto  directed  legislation  and  practice. 

The  more  commonly  apprehended  objection  to  the  settlement  of 
property  is,  that  it  involves  cost  and  may  disable  the  person  in  present 
enjoyment  of  it  from  availing  himself  of  opportunities  for  its  beneficial 
administration,  which,  if  he  be  prudent,  skilful,  and  free  to  act  as  he 
pleases,  he  may  beneficially  use.  In  every  case  in  which  the  question, 
whether  property  shall  or  shall  not  be  settled,  arises,  those  who  have  to 
decide  it  must  consider  whether,  in  that  particular  case,  the  above 
described  advantages   of  leaving  the  property  at  the  unfettered  dis- 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY        291 

position  of  those  who,  having  the  present  enjoyment  of  its  use  or 
yearly  produce,  ought  to  preserve  the  body  of  it  for  a  future  generation, 
do  or  do  not  outweigh  the  security  against  improvidence  and  misfortune 
afforded  by  settlement. 

Settlobs. 

Occasionally  settlements  are  made  by  public  authority.  Formerly 
the  Crown  could  and  did  reward  its  servants  by  settling  land  on  them 
and  their  descendants  (34  &  35  Hen.  viii.  c.  20,  preamble) ;  but  its 
impoverishment  by  indulgence  in  the  practice  led  to  a  restriction  of 
its  power  at  the  beginning  of  the  reign  of  Queen  Anne  (1  Anne,  c.  7); 
and  since  that  time  such  settlements  have  been  made  by  Acts  of 
Parliament.  Of  such  Acts,  those  passed  in  reward  of  the  eminent 
services  to  the  nation  of  the  Dukes  of  Marlborough  and  Wellington 
and  Lord  Nelson  are  conspicuous  examples.  Another  and  much  larger 
class  of  settlements  made  by  the  direct  exercise  of  the  sovereign 
authority  are  the  Private  Estate  Acts,  of  which,  and  notwithstanding 
the  legislation  of  the  last  forty  years,  several  still  pass  annually.  See 
Settled  Land  Acts.  Estate  Acts,  however,  are  rather  private  than  public 
conveyances  (Dwarris  on  the  Statutes,  2nd  ed.,  445) ;  and  their  solicita- 
tion is  regulated  by  Standing  Orders  (Standing  Orders  of  the  House  of 
Lords,  A.D.  1907,  149-174).  These  orders  show  that  the  legislature 
will  give  its  aid  only  in  cases  in  which  and  to  the  extent  to  which 
the  sovereign  power  can  and  the  judicature  cannot  remove  hindrances 
to  and  create  facilities  for  strict  enjoyment  by  the  owners  of  property 
as  the  donors  of  it  may  be  inferred  to  have  intended,  or  as  the  owners 
themselves  may  reasonably  desire.  Another  class  of  settlements  made 
more  or  less  directly  by  the  State,  but  in  the  exercise  of  its  judicial  and 
not  its  legislative  functions,  are  those  made  (1)  on  the  marriages  of 
wards  of  Court  and  other  infants;  (2)  in  performance  of  agreements 
for  settlements  and  executory  trusts;  (3)  in  giving  effect  to  a  wife's 
equity  to  a  settlement;  and  (4)  in  exercising  the  several  statutory 
powers  created  to  provide  for  needs  consequent  on  various  matrimonial 
troubles  {In  re  Stephenson,  [1897]  1  Q.  B.  638).  In  the  first  of  those 
four  cases  the  sovereign  power  acts  in  execution  of  its  quasi-parental 
•duty  to  its  infant  subjects ;  in  the  second  and  third,  in  its  more  ordinary 
function  of  enforcing  privately  constituted  rights;  in  the  fourth,  in 
redressing  the  consequences  of  wrong-doing.  The  practice  of  enforcing 
a  wife's  equity  to  a  settlement  is  obsolescent ;  the  equity  cannot  exist 
in  a  wife  married  since  1882,  or  with  reference  to  property  a  wife's  title 
to  which  accrued  after  that  year  (Married  Women's  Property  Act,  1882, 
ss.  1,  5). 

Bisabilities. — Most  settlements  are  made  by  persons  in  their  private 
capacities,  and  of  their  existing  or  expected  property.  Every  one  not 
subject  to  some  legal  disability  can  make  a  settlement,  and  the  only 
disabilities  which  totally  incapacitate  the  sufferers  from  doing  so  are 
those  of  unsoundness  of  mind  and  infancy  under  the  age,  in  the  case  of 
boys  of  twenty — and  in  that  of  girls  of  seventeen  years.  The  incapacity 
of  a  wife  has  been  almost  wholly  removed  by  the  Married  Women's 
Property  Act,  1882 ;  that  of  an  alien,  largely  by  the  Naturalisation 
Act,  1870;  and  that  of  a  traitor  or  felon,  to  some  extent  by  the 
Forfeiture  Act,  1870.  The  incapacity  of  bankruptcy  and  of  the  obsolete 
.status  of  insolvency  is  chiefly  caused  by  lack  of  property — all  that  of  a 
bankrupt  and  the  capacity  to  exercise  powers  exercisable  for  his  own 


592         SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY 

benefit  vesting  in  the  trustee  in  his  bankruptcy  (B.  A.,  1883,  ss.  43,  44, 
54) ;  but  as  settlements  may  be  and  often  have  been  made  to  save  the 
settlor's  property  from  the  claims  of  his  creditors,  such  instruments 
may  fail  through  their  being  obnoxious  to  the  provisions  which  the 
legislature  has  made  first  in  protection  of  creditors  generally  (13  Eliz. 
c.  5),  and  next  in  protection  of  creditors  in  bankrupty,  against  such 
an  abuse  of  a  proprietor's  right  to  dispose  of  his  property  (B.  A.,  1883, 
ss.  43,  44,  47,  48).    See  Bankruptcy  ;  Fraudulent  Conveyances. 

Infancy. — The  disability  of  infancy  is  that  of  chief  importance  to 
this  subject,  for  settlements  are  most  frequently  needed  on  marriage; 
and  while,  generally  speaking,  infants'  contracts  and  dispositions  of 
property  are  either  void  or  voidable,  infants  can,  and  especially  in  the 
case  of  girls  often  do,  marry  before  they  attain  majority.  Hence  in 
the  case  of  an  infant's  marriage,  the  question,  whether  at  all  and,  if 
at  all,  how  a  proper  settlement  of  that  infant's  property  can  be  or  has- 
been  made,  may  require  consideration. 

The  provision  for  an  infant  girl  about  to  marry,  of  such  a  jointure 
(Husband  and  Wife)  as  is  contemplated  by  the  Statute  27  Hen.  viii. 
c.  10,  ss.  6-9,  bars  her  right  to  dower;  but  that  is  now  a  matter  of  little 
importance  (see  ihid^ ;  and  neither  the  consideration  of  a  competent 
settlement,  the  concurrence  of  parents  or  guardians,  nor  an  order  of  the 
Court,  can  supply  the  defect  of  an  infant's  personal  incapacity  {Field  v. 
Mowe,  1855,  7  De  G.,  M.  &  G.  691 ;  44  E.  R  269 ;  Seatrni  v.  Seaton,  1888,, 
13  App.  Cas.  61).  The  inconvenience  caused  by  that  state  of  the 
law  is,  however,  lessened  by  several  circumstances  besides  that  of 
the  passing  of  the  Infants'  Settlements  Act,  1855,  described  below. 
First,  as  the  marriage  of  male  infants  is  rarer  than  that  of  girls  under 
twenty-one — as  the  property  settled  on  marriage  is,  in  the  greater 
number  of  cases,  personal  property  of  the  intended  wife — and  as  before 
1883  a  husband  became  entitled  on  his  marriage  to  such  personal 
property  as  his  wife  was  then  legally  entitled  to  in  possession,  and 
to  reduce  into  possession  her  things  in  action,  his  concurrence  before 
that  year  in  its  settlement,  if  he  was  then  adult,  bound  that  pro- 
perty. The  Married  Women's  Property  Act,  1882,  however,  put  an 
end  to  that  mode  of  making  settlements  by  infants.  Sec.  19  of  that 
Act  indeed  was  so  interpreted  as  that  settlements  and  agreements  for 
settlements  made  by  husbands,  who,  if  the  Act  had  not  been  passed,, 
would  have  been  entitled  by  marital  right  to  the  subject  of  settlement 
or  agreement,  were  held  to  be  valid  {Hancockw.  Hancock,  1888,  38  Ch.  D., 
78  ;  Stevens  v.  Trevor-Garrick,  [1893]  2  Ch.  307 ;  Buckland  v.  Buckland, 
[1900]  2  Ch.  534).  But  it  has  since  been  enacted  that  a  settlement 
or  agreement  for  a  settlement  made  after  the  1st  of  January  1908  by 
a  husband  or  intended  husband,  respecting  the  property  of  any  woman 
he  may  marry  or  have  married,  shall  not  be  valid  unless  it  be  executed 
by  her  if  she  be  of  full  age,  or  confirmed  by  her  after  she  attains  full 
age.  If,  however,  she  dies  an  infant  any  covenant  or  disposition  by  her 
husband  .  .  .  shall  bind  or  pass  any  interest  in  any  property  of  hers 
to  which  he  may  become  entitled  on  her  death.  .  .  .  Settlements  made 
under  the  Infants'  Settlements  Act,  1855,  are  not  to  be  affected, 
7  Edw.  VII.  c.  18,  s.  2.  Secondly,  where  an  infant  bride's  realty  was 
settled,  the  end  was  often  effected  by  articles  upon  marriage,  followed 
by  a  post-nuptial  conveyance  by  the  husband  and  wife  after  the  attain- 
ment of  her  majority  by  the  wife,  she  being  separately  examined  and 
acknowledging  the  deed.     Usually  the  wife  was  willing  and  the  husband. 


SETTLEMENTS;  SETTLEMENTS  OF  PROPEKTY         293 

bound  to  concur  in  such  a  conveyance.  Thirdly,  almost  all  settlements 
and  agreements  to  settle  made  on  marriage  by  infants,  being  apparently 
beneficial  to  the  infants,  are  not  void,  but  only  voidable.  As  such  a 
contract  does  not  need  ratification  it  is  not  affected  by  the  defeasance 
in  the  Infants'  Eelief  Act,  1874.  It  is  and  remains  valid  unless  and 
until,  within  a  reasonable  time  after  attaining  majority,  the  infant  elects 
to  avoid  its  obligation  (Allen  v.  Allen,  1842,  2  Dr.  &  Wal.  307 ;  Edwards 
V.  Carter,  [1893]  A.  C.  360,  364).  In  Edivards  v.  Carter  the  infant  was 
a  male,  but  like  decisions  were  made  in  In  re  Hodson,  [1894]  2  Ch. 
421 ;  Viditz  v.  O'Hagan,  [1899]  2  Ch.  569,  in  each  of  which  cases  the 
infant  was  a  wife.  The  reversal  of  the  latter  decision,  [1900]  2  Ch.  87, 
was  for  a  reason  unconnected  with  the  subject  now  under  consideration. 
But  see  Coojper  v.  Cooper,  1888,  13  App.  Cas.  88.  It  appears  that  even 
before  1883  a  woman,  when  adult  and  after  marriage,  might  repudiate 
or  confirm  at  her  option  a  contract  of  settlement  entered  into  by  her 
in  infancy  {In' re  Hodson,  [1894]  2  Ch.  421). 

By  the  Infants'  Settlement  Act,  1855  (Malins's  Act),  the  Infant 
Marriage  Act,  1860,  and  the  Judicature  Acts,  male  infants  of  the  age 
of  twenty  years,  and  female  infants  of  the  age  of  seventeen  years,  are 
empowered,  with  the  sanction  of  the  Chancery  Division  and  with  certain 
restrictions,  to  make  upon  or  in  contemplation  of  marriage,  valid  and 
binding  settlements  or  contracts  for  settlements.     See  Infants. 

Wards  of  Court. — When  a  ward  contemplates  marriage,  he  or  she 
must  apply  to  the  Court  for  its  consent.  Thereupon  an  inquiry  as  to 
the  propriety  of  the  proposed  marriage  is  ordered,  and  if  the  Court  is 
satisfied  on  that  point,  it  directs  proposals  for  a  settlement  to  be  made 
for  its  approval.  Marriage  of  a  ward  of  Court  without  consent  is  a 
contempt  for  which  the  Court  can  commit  the  other  offending  party. 
Formerly,  if  the  ward  was  a  female,  the  Court  could  require  the  husband, 
as  a  condition  of  release,  to  execute  a  settlement  whereby  he  precluded 
himself  from  all  pecuniary  benefit  obtained  by  marital  right ;  but  that 
appears  to  have  been  the  Court's  only  effective  means  of  protecting  by 
settlement  its  ward's  property,  for  it  can  neither  itself  settle  that  property 
nor  compel  its  ward  to  settle  it  (1855,  7  De  G.,  M.  &  G.  711 ;  Lord 
Herschell,  C,  1888,  13  App.  Cas.  71 ;  In  re  Leigh,  1888,  40  Ch.  D.  290); 
and  of  that  means  the  Married  Women's  Property  Act  has  deprived  the 
Court  by  abolishing  acquisition  by  marital  right  (above,  p.  292),  except 
the  husband's  chance  of  title  by  surviving  her. 

Characters  of  Settlements  Approved  on  Marriages  of  Wards  of  Court. — 
The  settlements  which  the  Court  sanctions  on  the  marriage  of  its  wards 
are  such  as  it  thinks  most  conducive  to  their  welfare — such  as  a  prudent 
father  would  approve  of  (Turner,  L.J.,  1855,  7  De  G.,  M.  &  G.  102 ; 
44  E.  R.  40;  1884,  25  Ch.  D.  498);  and  slight  as  its  power  is,  the  cir- 
cumstance that  the  Court's  consent  to  the  marriage  is  required  enables 
it,  with  greater  chances  of  success  than  a  private  person,  to  bargain  for 
benefits  to  its  ward  from  the  fortune  of  the  other  spouse  {Martin  v. 
Foster,  1855,  7  De  G.,  M.  &  G.  98 ;  44  E.  R.  39).  Indeed,  in  cases  of 
contempt  it  has  been  said  to  be  the  general  rule  for  the  Court,  if  it  can, 
to  procure  the  exclusion  of  the  offender  from  all  interest  in  the  ward's 
fortune  {Kent  v.  Burgess,  1840, 11  Sim.  361 ;  59  E.  R.  913 ;  54  R.  R.  402); 
but  adherence  to  that  rule,  or  breach  of  it,  is  chosen  in  accordance  with 
what  is  believed  to  be  more  beneficial  to  the  ward  {HodgeTis  v.  Hodgens, 
1837,  4  CI.  &  Fin.  323 ;  7  E.  R.  124;  Wade  v.  Hopkinson,  1854, 19  Beav. 
613 ;  52  E.  R.  488).    The  practice  of  the  Court  with  reference  to  such 


294         SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY 

settlements  serves  to  show  what,  in  several  respects,  the  judges  have 
thought  that  a  prudent  father  would  approve  of.  It  should  therefore 
be  noted  that,  in  a  settlement  of  a  female  ward's  property,  the  Court 
approves  of  the  insertion  of  a  restriction  on  her  power  of  anticipating 
income  during  coverture  {Blackie  v.  Clarh,  1852,  15  Beav.  595,  607; 
51  E.  R.  669)  of  a  general  power  of  appointment  which,  in  default  of 
children  who  attain  twenty-one,  or,  being  girls,  marry,  she  may  exercise 
by  will  {Birkett  v.  Hihhert,  1834,  3  Myl.  &  K.  227 ;  40  E.  R.  86),  and  of 
provisions  for  the  contingency  of  a  second  marriage  {Bathurst  v.  Murray, 
1802,  8  Ves.  74 ;  32  E.  R.  279 ;  6  R.  R.  230).  See  below,  Name  and 
Arms  Clause. 

Clandestine  Marriages  of  Infants. — A  marriage  obtained  by  certain 
false  means,  described  in  4  Geo.  iv.  c.  76,  s.  23,  between  infant  bachelors 
and  spinsters,  authorises  the  Court,  during  twelve  months  after  the 
marriage,  to  direct  that  certain  property  therein  specified  shall  be 
secured  for  the  benefit  of  the  innocent  party,  or  the  issue  of  the  mar- 
riage, or  any  of  them ;  or,  if  both  parties  are  guilty,  immediately  for  the 
benefit  of  issue  of  the  marriage,  regard  being  had  to  matters  in  the  Act 
specified.  The  Married  Women's  Property  Act,  1882,  however,  seems 
to  seriously  interfere  with  the  operation  of  this  Act  and  others  by  which 
it  was  extended  to  marriages  outside  the  scope  of  the  first  (6  &  7  Vict. 
c.  85,  s.  43;  19  &  20  Vict.  c.  119,  s.  19;  12  &  13  Vict.  c.  68,  s.  15; 
7  &  8  Vict.  c.  81,  s.  51). 

Executory  Settlements. 

In  some  cases  contracts  to  make  settlements,  in  others  trusts  to 
make  them,  have  to  be  performed.  If  the  contract  or  trust  sets  forth 
explicitly  the  contents  of  the  settlement  contracted  for  or  directed  to 
be  made,  there  is  no  difference  between  the  language  of  contract  or  trust 
and  that  of  the  settlement  itself.  In  such  a  case  the  parties  to  the  con- 
tract or  the  makers  of  the  trusts  have  been  what  has  been  called  their 
own  conveyancers.  In  other  cases  the  contract  of  the  trust  only  fur- 
nishes heads  of  the  intended  settlement,  and  in  those  cases  the  terms  of 
the  settlement  must  vary  from  those  of  the  contract  or  executory  trust 
in  order  to  give  effect  to  the  intent  {Glenorchy  v.  Bosvile,  1  White  and 
Tudor's  Leading  Cases  in  Equity,  1,  and  notes  thereto). 

Occasions  for  Settlements. 

Settlements  by  deed  are  made  oftener  on  marriage  than  on  any  other 
event ;  but,  probably,  still  more  settlements  are  made  by  will.  On  the 
attainment  of  his  majority  by  the  eldest  son  of  a  wealthy  family,  the 
family  estate  is  frequently  settled ;  and  when  the  settlement  is  in  sub- 
stitution for  a  previously  existing  settlement,  such  an  instrument  may 
acquire  the  title  of  a  re-settlement;  and  when,  being  effected  by  the 
concurrence  of  a  father  and  son,  it  provides  for  other  members  of  the 
family  than  the  younger  settlor,  and  the  wife  and  children  of  whom 
he  may  become  the  husband  and  father,  it  constitutes  what  is  called 
a  family  settlement.  Not  infrequently  proprietors,  wishing  either  to 
perform  an  act  of  bounty  or  to  protect  themselves  against  the  risks 
of  absolute  ownership,  make  what  are  called  voluntary  settlements. 
Finally,  differences  between  husbands  and  wives  lead  to  agreements — 
known  as  separation  deeds — to  live  separately,  upon  specified  terms 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY         295 

concerning  property  (below,  p.  314) ;  and  matrimonial  offences  give  rise 
to  orders  by  the  Court,  which,  if  made  on  judgment  for  dissolution  of  a 
marriage,  may  secure  permanent  maintenance ;  if  made  on  either,  such 
a  dissolution  or  a  judicial  separation  may  settle  damages  or  property  of 
a  guilty  wife ;  or  if  made  on  judgment  for  either  dissolution  or  nullity 
of  marriage,  may  vary  existing  settlements  (below,  pp.  315-317).  Effect 
is  given  to  such  orders  by  instruments  executed  by  the  parties  con- 
cerned, though  their  force  is  chiefly  derived  from  the  preceding  acts 
of  the  judicature  {In  re  Stephenson,  [1897]  1  Q.  B.  638). 

Subjects  of  Settlement. 

Real  Property  and  Personal  Property. — All  English  property  being 
either  real  or  personal  in  its  character,  all  settlements  may  be  primarily 
classified  as  real  property  settlements  and  personal  property  settlements 
respectively,  and  the  normal  form  of  settlement  in  each  class  differs 
from  the  normal  form  in  the  other,  so  that  a  real  property  settlement 
is  commonly  understood  to  mean,  independently  of  its  subject,  a  settle- 
ment of  one  type,  and  a  personal  property  settlement  one  of  another ; 
but  though  the  two  types  of  settlement  are,  generally  speaking,  applied 
to  the  two  kinds  of  property,  that  application  of  them  is  far  from  being 
universally  exact.      The  difference,  indeed,  between  the  two  kinds  of 
settlement  originated  in  the  circumstance  that  land  has  a  value  to  its 
possessors  independent  of  the  income  to  be  derived  from  it,  whereas 
money  and  its  investments  are  valued  only  for  the  interest  and  dividends 
they  may  yield.    A  settlement  of  land  is  made  with  the  hope  that  it 
may  be  kept  in  its  entirety  unsold.     Money  or  investments  are  settled 
without  any  such  hope.     They  are  valued  only  for  the  income  they  yield, 
and  the  security  for  its  continuance  they  are  believed  to  possess ;  and  if 
with  safety  and  profit  they  can  be  exchanged  for  others,  every  settlor 
would  wish  that  they  should  be  so  exchanged.    The  primary  difference 
between  the  two  types  is,  that  in  real  property  settlements,  after  the 
life  estates,  the  land  is  made  to  devolve  to  issue  by  limitations  corre- 
sponding with  the  canons  of  descent  in  fee  tail  and  fee  simple  (Real 
Property,  Descent;  Estates  of  Inheritance,  Edate  Tail);  while  in 
personal  property  settlements  the  trusts  for  issue  correspond  rather 
with  the  rules  prescribed  by  the  statutes  for  the  distribution  of  the 
goods  of  persons  dying  intestate  (Distribution,  Statutes  of).     In  both 
cases  they  correspond  with  the  habits  of  English  proprietors.    Land  is 
so  settled  as  that,  after  the  parents'  deaths,  it  shall  devolve  on  their 
sons  and  their  issue  successively,  with  remainder  to  the  daughters  in 
common,  or  successively,  and  their  issue.     Provisions  by  way  of  charge 
on  the  estate  are  made  for  the  life  income  of  the  spouse  who  does  not 
take  a  life  estate,  and  for  portions  for  the  children  who  do  not  obtain 
the  inheritance.     Personalty,  on  the  other  hand,  is  so  settled  as  that, 
after  the  deaths  of  the  parents,  and  subject  to  powers  to  vary  some- 
what that  destination  which  are  given  to  the  parents,  it  may  be  divided 
equally  among  the  children.  > 

But  the  real  property  type  of  settlement  is  not  very  often  applied  to 
a  small  estate.  That  is  more  frequently  settled  by  way  of  trust  for  sale, 
with  other  trusts  of  the  price,  which  are  those  of  a  personal  property 
settlement.  In  a  corresponding  manner,  money  is  sometimes  settled 
by  a  trust  to  invest  in  land  which  is  directed  to  be  settled  in  the  manner 
characteristic  of  a  real  property  settlement.     The  history  of  the  settlor's 


296         SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY 

family,  or  his  wealth,  may  determine  the  choice.  If  his  family  have 
long  owned  the  land  to  be  settled,  or  he  be  the  owner  of  large  wealth, 
he  is  likely  to  look  forward  to  the  maintenance  or  foundation  of  a 
family  with  a  single  head,  and  with  that  view  before  him  he  chooses  to 
make  a  settlement  of  land,  or  even  of  personalty,  in  the  form  known  as 
a  real  property  settlement. 

Corporeal  Chattels. — The  special  value  which  often  attaches,  at  least 
in  the  minds  of  their  owners,  to  some  chattels,  such  as  jewels,  furniture, 
books,  works  of  art,  and  objects  of  historical  or  scientific  interest,  often 
leads  settlors  to  create  trusts  of  them  more  nearly  analogous  to  the 
limitations  usual  in  a  real,  than  to  those  employed  in  a  personal, 
property  settlement.  The  articles  are  then  said,  though  not  accurately, 
to  be  settled  as  heirlooms.     See  Heirlooms. 

In  some  cases  there  is  not  a  fund  which  can  be  transferred  to  trustees 
upon  trusts ;  but  the  future  acquisition  of  one  can  be  provided  in  one 
or  other  of  two  ways. 

Covenants  to  Pay  a  Capital  Sum  with  Interest. — The  first  case  of  this 
kind  is  that  of  an  intended  husband,  or  the  father  of  one  of  two  intended 
spouses,  who  has  property  engaged  in  business  which  he  cannot  con- 
veniently withdraw  from  that  employment.  He  can,  however,  covenant 
for  the  payment  of  a  capital  sum  at  a  future  date,  and  for  payment  of 
interest  meanwhile.  The  death  of  the  covenantor  is  in  most  cases  the 
first  point  of  time  at  which  he  finds  it  convenient  to  promise  payment 
of  the  principal,  though  it  is  prudent  to  authorise  him  to  pay,  and 
the  trustees  to  accept  payment  earlier.  It  will  be  seen  that  the  trusts 
of  capital  and  income,  hereinafter  described,  as  usual  in  these  settle- 
ments, can  be  applied  to  such  a  capital  fund  and  income. 

Settlements  of  Life  Policies. — The  other  case  is  that  of  an  intended 
husband  who,  although  he  has  not  capital  which  he  can  at  once  settle, 
has  a  business  productive  of  a  sufficient  income  to  promise  the  means 
not  only  of  living,  but  also  of  paying  the  premiums  of  a  policy  on  his 
life.  In  such  a  case  the  policy  is  effected  and  assigned  to  the  trustees 
of  the  settlement,  payment  of  the  future  premiums  provided  for  by  the 
settlor's  covenant,  and  sometimes  by  trusts  of  the  income  of  other 
settled  property,  and  trusts  of  the  money  to  become  payable  to  the 
trustees  by  virtue  of  the  policy  are  declared  for  the  benefit  of  the  parties 
to  the  marriage  and  their  issue,  upon  the  lines  of  those  presently 
described  with  reference  to  marriage  settlements  of  personalty  generally. 
A  clause  specially  exonerating  the  trustees  from  responsibility  for  not 
enforcing  the  husband's  covenant  is  usually  inserted. 

In  settlements  of  real  estate  the  beneficial  interests  can  be  made  to 
consist  of  legal  estates,  but  in  those  of  personalty  the  beneficial  interests 
must  be  constituted  by  means  of  trusts,  because  the  common  law  did  not 
recognise  in  personalty  such  interests  as  are  called  estates  and  terms  in 
land.  The  trusts  are  usually  accompanied  by  powers  enabling  in  some 
cases  beneficiaries,  and  in  others  the  trustees,  to  modify  in  some  respects 
and  contingencies  the  trusts  originally  declared — to  facilitate  the  prudent 
administration  of  the  settled  property — and  to  substitute  in  appropriate 
events  new  trustees  for  those  originally  intrusted. 

Marriage  Settlements. 

In  describing  more  particularly  the  contents  of  settlements  it  will 
be  convenient  to  begin  with  those  made  on  marriage,  for  they  exhibit 
better  than  any  others  the  character  of  a  settlement. 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY         297 

Fraud  on  Marital  Right. — Previously  to  the  year  1883  the  possibility 
of  a  settlement  being  impeached  for  fraud  on  the  marital  right  needed 
to  be  guarded  against.  A  husband,  on  marriage,  acquired  the  whole 
interest  in  some  parts  of  his  wife's  property  and  partial  interests  in 
others,  and  it  was  held  that  if,  pending  a  treaty  for  a  marriage  which  was 
afterwards  solemnised,  a  wife,  without  the  knowledge  of  her  intended 
husband,  so  settled  her  property  as  to  infringe  those  rights,  her  act  was 
fraudulent,  and  the  deed  voidable  {Countess  of  Strathmore  v.  Bowes,  1789, 
1  White  and  Tudor's  Leading  Cases  in  Equiiy,  7th  ed.,  613  and  notes). 
The  Married  Women's  Property  Act,  1882,  45  &  46  Vict.  c.  75,  s.  2,  has 
prevented  husbands  who  have  married  since  that  year  from  acquiring 
by  marriage  any  title  to  their  wives'  property. 

Consideration. — Of  valuable  considerations  (see  Contract)  that  con- 
stituted by  marriage,  though  incapable  of  valuation  (1856,  1  De  G-.  &  J. 
398 ;  44  E.  Pv.  777),  is  treated  as  the  most  valuable  of  all  (1859,  4  ibid. 
661 ;  45  E.  R.  257).  In  order  to  obtain  its  support,  a  settlement  or  a 
contract  for  it  must  be  made  in  writing  before  the  solemnisation  of  the 
marriage  (Statute  of  Frauds,  29  Chas.  Ii.  c.  3,  s.  4 ;  Sturgeon  v.  Collier, 
1758,  1  Eden,  55;  Bamsden  v.  Hylton,  1751,  2  Ves.  304;  28  E.  Pt.  196). 
Its  support  extends  to  stipulations  and  dispositions  in  favour  of  each 
spouse,  or  in  favour  of  issue  of  the  marriage  {De  Mestre  v.  West,  [1891] 
App.  Gas.  264). 

Freliminary  Limitation. — In  every  such  settlement  or  agreement  the 
first  use  or  trust  limited,  created,  or  stipulated  for,  is  one  which  will 
preserve  the  existing  state  of  ownership  until  the  intended  marriage 
shall  have  been  solemnised.  The  subsequent  uses  or  trusts  are  all  to 
be  contingent  on  the  occurrence  of  that  event. 

By  far  the  greater  number  of  marriage  settlements  are  settlements 
of  personalty,  and  land  settled  upon  trust  for  sale,  and  as  personalty. 

Personalty —  Wife's  Fortune. — In  a  pereonal  property  settlement  of 
an  intended  wife's  fortune,  it  is  usual  to  declare,  after  the  preliminary 
limitation — first,  a  trust  of  the  yearly  produce  which  shall  accrue  after 
the  marriage  and  during  the  life  of  the  intended  wife  for  her,  with  a 
prohibition  of  alienation  during  coverture.  That  prohibition  has  in  late 
years  been  very  frequently  made  applicable  to  every  possible  period  of 
coverture. 

Next,  a  trust  is  declared  of  the  yearly  produce  which,  if  the  intended 
husband  shall  survive  the  intended  wife,  shall  accrue  after  her  death 
and  during  his  life.  That  trust  is  ordinarily  for  the  husband  absolutely. 
It  is,  however,  a  practice  of  increasing  frequency  to  give  to  him  what 
is  called  a  protected,  and  not  an  absolute,  interest.  If  he  is  engaged  in 
commercial  business,  the  risks  against  which  the  adoption  of  that  course 
may  guard  are  obvious,  and  even  men  who  are  not  engaged  in  business, 
and  are  of  prudent  habits,  not  infrequently  find  themselves  involved 
in  pecuniary  liabilities  caused  perhaps  by  the  acts  or  omissions  of  others. 
The  protected  life  interest  is  constituted  in  the  following  manner: — 
First,  a  trust  of  the  yearly  produce  for  the  husband  is  declared  con- 
tingently on  his  not  having  done  or  suffered,  before  he  would  become 
entitled  to  it  in  possession,  anything  in  consequence  of  which,  if  the 
income  had  been  given  to  him  absolutely,  it  would  have  vested  in 
another,  and  the  interest  is  so  created  as  to  continue  only  so  long  as  he 
shall  not  have  done  or  suffered  some  such  thing.  That  trust  is  followed 
by  a  discretionary  one  authorising  the  trustees,  either  in  the  event  of 
the  failure  or  after  the  determination  of  the  preceding  trust  for  the 


298         SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY 

husband,  to  apply  to  much  of  the  yearly  produce  accruing  during  his 
life  as  they  shall  from  time  to  time  think  fit,  for  the  benefit  of  all  or 
any  members  of  a  class,  consisting  of  the  intended  husband  and  issue  of 
the  marriage.  It  is  convenient  to  append  to  that  discretionary  trust  a 
declaration  that  it  may  be  performed  notwithstanding,  in  the  event  of 
the  husband  marrying  again,  his  second  wife  and  any  issue  of  that 
marriage  participating  in  the  benefit  of  the  trust.  This  declaration 
avoids  the  obviously  objectionable  course  of  including  such  a  second 
wife  and  her  issue  in  the  class  of  objects  of  the  trust,  and  yet  permits 
an  application  of  the  income  in  a  manner  which  may  be  most  advan- 
tageous, not  only  to  the  husband,  but  also  to  any  issue  of  the  wife  from 
whose  property  the  income  is  derived.  Any  savings  may  be  capitalised 
and  added  to  the  original  fund. 

Trusts  for  Issue. — After  the  death  of  the  survivor  of  the  husband 
and  wife,  the  trustees  are  directed  to  hold  the  capital  fund  and  its 
subsequently  accruing  yearly  produce  upon  such  trusts  for  issue — 
including  not  only  children  of  the  marriage,  but  also  more  remote 
issue — as  the  intended  husband  and  wife  shall  by  deed  or  writing 
jointly  appoint,  and  in  default  of  and  subject  to  any  such  joint  appoint- 
ment as  the  survivor  of  the  intended  spouses  shall  by  deed  or  writing  or 
by  will  appoint.  So  an  indefeasible  title  to  the  trust  fund  is  secured  to 
issue,  though  not  necessarily  to  all  the  issue  of  the  intended  marriage. 
The  powers  thus  given  to  the  parents  usually  give  them  an  unlimited 
choice  of  members  of  the  class  of  issue  in  whose  favour  they  will 
exercise  their  powers,  and  of  the  interests  they  will  give  to  the  members 
they  favour.  They  can  give  the  whole  fund  to  one  or  some  of  their 
issue,  to  the  exclusion  of  the  rest ;  but  they  cannot  give  anything  to  a 
person  who  is  not  a  member  of  the  specified  class.  Events  may  happen, 
as  in  fact  they  often  do,  which  will  make  it  expedient  for  parents  to  have 
these  powers,  and  though,  of  course,  they  may  be  abused,  they  are 
intrusted  to  persons  whose  necessary  knowledge  and  probably  right 
judgment  and  feeling  will  prompt  them  to  use  their  powers  rightly. 
The  Court  has  asserted,  and  is  in  the  habit  of  exercising  authority,  to 
restrain  abuses  of  the  powers  by  the  donees  of  them  for  their  own  benefit, 
or  for  purposes  alien  to  those  for  which  they  are  designed  {Henty  v. 
Wrey,  1882,  21  Ch.  D.  332 ;  Topham  v.  Duke  of  Poi^tland,  1864, 11  H.  L.  C. 
32;  11  E.  R.  1242;  see  Powers,  Execution  of  Fraudulent). 

Until  recently,  in  most  settlements,  children  of  the  marriage  only 
were,  and  in  some  they  only  still  are,  made  objects  of  the  powers  above 
described ;  but  it  is  now  a  frequent,  if  not  the  general,  practice  to  extend 
their  scope  to  issue  generally.  Frequently  children  marry,  have  families, 
and  die  before  their  parents,  and  in  such  cases  it  is  convenient  for  the 
original  stock  of  parents  to  be  able  to  appoint  to  grandchildren,  or  even 
more  remote  descendants.  Even  during  the  life  of  a  child  the  circum- 
stances may  be  such  as  to  make  an  appointment  to  a  child  of  that 
child  expedient,  if  practicable.  Moreover,  the  extension  of  the  power 
minimises  the  risk  presently  shown  to  be  incident  to  the  common  trust 
in  default  of  appointment  next  described. 

The  contingency  of  the  last-mentioned  powers  of  appointment  by  the 
husband  and  wife,  or  the  survivor  among  their  issue,  not  being  exercised 
at  all,  or  not  being  exercised  exhaustively,  is  usually  provided  for  by  a 
trust  for  such  of  the  children,  if  more  than  one  equally,  and  if  but  one, 
wholly  for  such  one,  of  the  intended  marriage,  as  being  male  shall  live 
to  attain  the  age  of  twenty-one  years,  or  being  female  shall  live  to  attain 
that  age  or  marry  under  that  age. 


SETTLEMENTS;  SETTLEMENTS  OF  PROPEETY         299 

This  trust  effects  in  most  cases  what  settlors  would  usually  wish  when 
they  contemplate  the  contingency  for  which  it  provides,  and  it  would 
need  no  comment  were  it  not  for  a  possible  operation  of  it  which  few,  if 
any  settlors  think  of,  and  conveyancers  disregard.  The  trust  is  appar- 
ently framed  upon  a  consideration  of  the  fact  that  boys  seldom  and  girls 
often  marry  under  twenty-one,  and  that  it  is  expedient  to  discourage 
the  earlier  marriage  of  young  men.  But  boys  under  twenty-one  do 
sometimes  marry,  and  a  son,  who  if  he  lived  would  be  entitled  under  a 
settlement,  may  marry,  have  issue,  and  die  under  twenty-one.  If  he 
should  so  die,  neither  he  nor  his  child,  even  though  that  child  should 
survive  its  father's  parents,  would  be  an  object  of  the  above-described 
trust  in  default  of  appointment.  The  other  children  or  child,  if  any,  of 
the  marriage  on  which  the  settlement  was  made,  would  be  entitled  to 
the  whole  of  the  settled  fund,  to  the  exclusion  of  the  child  or  children 
of  the  son  who  had  died  under  twenty-one.  If  there  was  no  such  other 
child  the  fund  would  be  governed  either  by  subsequent  trusts  in  the 
settlement  intended  to  take  effect  in  default  of  issue  of  the  marriage,  or 
if  there  were  no  such  trusts  by  a  resulting  trust  for  the  settlor.  In 
either  of  those  cases  the  grandchild  might  or  might  not  take  by 
virtue  of  those  trusts  and  the  Statutes  of  Distribution.  If  the  settle- 
ment authorises  the  intended  husband  and  wife  or  the  survivor  to 
appoint  not  only  among  their  children,  but  among  their  more  remote 
issue,  they  can  appoint  to  the  supposed  child  of  a  son  who  has  died 
under  twenty-one.  Some  proposals  have  been  made  for  making  such  a 
grandchild  an  object  of  the  trust  in  default  of  appointment,  but  they 
have  not  proved  acceptable ;  eminent  lawyers  have  disapproved  of  them 
as  encouragements  to  imprudently  early  marriages ;  and  the  writer  does 
not  recollect  having  heard  of  any  disaster  consequent  on  the  use  of  the 
commonly  adopted  trust. 

Hotchpot. — Following  the  last-mentioned  trust  it  is  usual  to  insert 
a  proviso  that,  if  part  of  the  settled  fund  be  appointed  by  the  husband 
and  wife  or  the  survivor  to  issue  of  the  marriage,  no  child  of  the 
marriage,  to  whom,  or  (if  the  power  extends  to  issue  more  remote  than 
children)  to  whose  issue  any  part  of  the  settled  fund  shall  have  been 
appointed,  shall  participate  in  that  fund  by  virtue  of  the  trust  to  take 
efi'ect  in  default  of  appointment,  without  accounting  for  the  part 
appointed  to  him  or  her  or  to  his  or  her  issue  as  part  of  that  to  which 
he  or  she  is  entitled  under  the  last-mentioned  trust. 

Advancement. — Another  clause  authorises  the  trustees,  but  during  the 
lives  or  life  of  the  husband  and  wife,  or  the  survivor  of  them  only  with 
their,  his,  or  her  consent,  to  raise  and  apply  capital  for  the  advancement 
or  benefit  of  any  child.  The  amount  which  may  be  so  applied  is 
generally  restricted  to  some  specified  proportion — frequently  half  or 
o^e-third — of  the  child's  expectant  share.  If  expectant  interests  be 
settled,  it  may  be  prudent  to  restrict  the  operation  of  the  power  to  funds 
to  which  the  trustees  shall  be  entitled  in  possession  upon  the  trusts  of 
the  settlement. 

Maintenance,  Accumulation. — Until  the  passing  of  Lord  Cranworth's 
Act,  23  &  24  Vict.  c.  145,  in  1860,  and,  indeed,  for  several  years  later, 
it  was  usual  to  insert  after  the  power  of  advancement  what  were  called 
"  Maintenance  and  Accumulation  Clauses."  They  authorised  the  trustees 
after  the  death  of  the  survivor  of  the  husband  and  wife  to  apply  income 
from  the  settled  fund  in  or  towards  the  maintenance  and  education  of 
their  children  during  their  minorities,  and  directed  the  trustees  to  retain 


300         SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY 

such  of  the  income  as  they  did  not  so  apply  and  invest  it  and  the 
resulting  income  by  way  of  accumulation  during  the  same  minorities  for 
the  benefit  of  those  who  became  entitled  to  the  capital.  The  trustees 
were  authorised  to  resort  for  funds  for  maintenance  and  education  in 
later  years  to  previous  accumulations.  Lord  Cranworth's  Act  contained 
an  enactment  (s.  26)  designed  to  operate  in  substitution  for  those 
clauses,  and  to  abrogate  the  need  of  inserting  them  in  settlements.  The 
language  in  which  the  section  was  expressed  suggested  to  conveyancers 
a  doubt  whether  it  would  be  perfectly  safe  to  rely  on  the  statute  (Lewin, 
Trusts,  4th  ed.,  384ri. ;  3  Dav.  Conv.,  3rd  ed.,  177),  and  to  a  large  extent 
the  old  practice  of  inserting  maintenance  and  accumulation  clauses  was 
adhered  to  until,  in  1875,  Sir  G.  Jessel,  M.R.,  made  a  decision,  whereby, 
not  without  upbraiding  conveyancers  for  their  hesitancy,  he  resolved 
their  doubts  {In  re  Cotton,  1875,  L.  R.  1  Ch.  232).  Thereafter,  the 
writer  believes,  conveyancers  generally  relied  on  the  section  in  Lord 
Cranworth's  Act  while  it  remained  in  force,  and  afterwards  on  that 
substituted  for  it  by  Lord  Cairns  in  the  Conveyancing  and  Law  of 
Property  Act,  1881,  until,  in  1890,  they  were  again  discomfited  by  a 
judgment  {In  re  Jeffrey,  [1891]  1  Ch.  671),  which,  if  right,  showed  that 
the  last-mentioned  enactment  failed  to  effect  in  ordinary  cases  the 
objects  for  which  maintenance  clauses, had  been  formerly^used.  The  old 
practice  was  again  recurred  to  by  many  practitioners,  who  continued  to 
insert  those  clauses  until  the  end  of  1894,  when  the  judgment  last  referred 
to  was  overruled  by  Mr.,  afterwards  Lord,  Justice  Chitty  and  the  Court 
of  Appeal  {In  re  Holfm-d,  [1894]  3  Ch.  30).  That  judgment  restored 
confidence  in  the  efficiency  of  the  statutory  power,  and  it  is  now 
generally  relied  on. 

Trusts  in  Default  of  Issue. — In  addition  to  the  already  described 
trusts  for  the  benefit  of  the  intended  spouses  and  their  issue,  it  is 
usual  and  expedient  to  prescribe  a  destination  for  an  intended  wife's 
fortune  in  the  event  of  the  determination  or  failure  of  every  one  of 
those  trusts,  without  vesting  the  capital  in  issue  of  the  marriage.  If 
no  such  destination  were  expressed  there  would  arise  a  resulting  trust 
for  the  settlor.  In  the  case  of  a  wife's  fortune,  it  is  thought  prudent  to 
guard  her  against  influence  to  her  detriment  by  her  husband's  importunity 
or  need  by  the  following  series  of  trusts : — They  first  empower  the 
wife  to  appoint  the  fund  to  whom  and  in  such  manner  as  she  may 
choose  by  will ;  or,  according  to  the  practice  of  some  conveyancers,  if 
executed  while  the  woman  shall  be  sole,  by  deed  or  will.  Pinally,  each 
of  the  two  possible  events  of  the  wife  surviving  her  husband  or  dying 
before  him  has  been  provided  for.  The  trust  in  each  case  is  subject 
to  all  those  preceding  it.  If  she  shall  survive  her  intended  husband 
the  declaration  is  that  the  trustees  shall  stand  possessed  of  the  fund  for 
her,  and  upon  this  it  is  conceived  to  be  prudent — now  that  a  wife  can 
dispose  of  all  her  property,  including  reversionary  interests  in  personalty 
— to  impose,  during  the  intended  and  every,  if  any,  subsequent  cover- 
ture, a  restriction  on  her  power  of  alienation.  If,  on  the  other  hand, 
the  wife  shall  die  in  the  lifetime  of  her  husband,  the  destination  given 
to  her  fortune  is  usually  expressed  by  a  trust  for  such  person  or  persons 
as  under  the  Statutes  of  Distribution  would  have  become  entitled  to  the 
fund  at  the  death  of  the  wife  if  she  had  died  a  spinster,  entitled  thereto, 
intestate  and  domiciled  in  England,  those  persons,  if  more  than  one, 
to  take  in  the  shares  in  which  they  would  have  taken  under  the  same 
statute.     This  creates  a  contingent  trust  for  the  wife's  own  family  in 


SETTLEMENTS;  SETTLEMENTS  OF  PROPEETY         301 

exclusiou  of  her  husband,  to  whom,  if  she  wishes  to  do  so,  she  can  under 
her  general  power  give  the  fund  by  will.  The  whole  series  of  trusts 
protects  her  from  undue  marital  influence,  and  preserves  her  liberty  to 
benefit  ultimately  her  husband  or  any  other  persons  as  completely  as  is 
possible. 

When  the  general  power  of  appointment  reserved  to  a  wife  is  made 
capable  of  being  exercised  by  deed  while  sole,  it  is  so  made  with  an 
unexpressed  intent  that  it  may  be  exercised  after  a  divorce.  If  she 
becomes  sole  by  means  of  the  death  of  her  husband,  she  also  becomes 
absolutely  entitled  to  the  fund,  and  needs  no  power  of  appointment. 
Whether  the  provision  for  the  contingency  of  a  divorce,  though  the 
intent  be  veiled,  is  legitimate  and  effectual  seems  to  be  a  question  not 
free  from  doubt ;  and  it  is  to  be  recollected  that  upon  a  dissolution 
of  marriage  a  variation  of  existing  settlements  may  be  made.  The 
provision  has,  however,  the  sanction  of  high  conveyancing  authority 
(3  Davidson's  Free,  3rd  ed.,  717 ;  2  Key  and  Elphinstone's  Free,  6th 
ed.,  481). 

Fersonalty  —  Husband's  Fortune. — An  ordinary  settlement  of  an 
intended  husband's  personalty  is  similar  to  that  of  an  intended  wife's, 
except  that  the  first  instead  of  the  second  life-interest  is  given  to  him ; 
that,  the  property  being  his  own,  it  is  impracticable  to  protect  his  life- 
interest  quite  in  the  way  in  which  his  life-interest  in  property  settled 
by  his  wife,  or  by  anyone  but  himself,  may  be  settled  {Higinhothani  v. 
Eolme,  1812, 19  Ves.  88;  34  E.  R.  451;  12  R.  R.  146  ;  WTiitmare  v.  Mason, 
1861,  2  John.  &  H.  204),  though  it  may  be,  and  sometimes  is,  made  for- 
feitable upon  assignment  (Brooke  v.  Fearson,  1859, 27  Beav.  181 ;  54  E.  R. 
70  ;  Knight  v.  Brmvne,  1861,  7  Jur.  N.  S.  894 ;  30  L.  J.  Ch.  649 ;  In  re 
Ditmold,  1889,  40  Ch.  D.  585 ;  Mackintosh  v.  Fogose,  [1895]  1  Ch.  505) ; 
and,  last,  that  the  ultimate  trust  to  take  effect  at  the  expiration  of  the 
settlement  is  for  the  settlor  simply. 

Administrative  Fowers.  —  It  is  expedient  and  usual  to  give  some 
administrative  powers  to  the  trustees.  An  absolute  owner  can,  out  of 
his  estate  or  interest,  give  effect  to  every  disposition  of  the  subjects  of 
his  property  which  the  law  permits ;  but  it  is  of  the  essence  of  a  settle- 
ment that  the  whole  property  is  divided  among  several  owners,  some 
of  whom  usually  are  unborn  or  in  infancy.  Hence  if  it  be  desired  that 
in  any  or  all  respects  the  subjects  of  a  settlement  shall  be  capable  of 
being  dealt  with  as  an  absolute  owner  might  deal  with  them,  the  settlor 
must  endow  one  or  more  persons  with  express  powers  for  that  purpose^ 
except  in  the  cases  in  which  the  general  law  gives  the  desired  authority. 
Of  the  exception,  a  settled  personal  unsecured  debt  is  an  example. 
The  mere  transfer  authorises  the  trustees  to  sue  for  it ;  the  doctrine  of 
equity  makes  it  their  duty  to  do  so,  and  the  statute  law  authorises  them 
to  give  a  receipt  for  it — which  will  discharge  the  debtor  from  responsi- 
bility for  the  application  of  the  money.  But  the  general  law  does  not 
authorise  the  trustees  of  a  settlement  to  do  many  things  which  it  may 
be  expedient  that  they  should,  with  or  without  the  consent  of  some  or 
one  of  the  beneficiaries,  have  power  to  do. 

Investment. — The  most  important  of  these  provisions  relate  to  invest- 
ment. If  the  fund  settled  be  money,  although  it  becomes  the  duty  of 
the  trustees  to  invest  it,  yet  it  is  expedient  to  insert  an  express  trust 
to  do  so.  If  the  subject-matter  of  the  property  be  such  that  the 
trustees  need  to  do  some  act  to  obtain  the  command  of  it,  or  if  it  be 
expedient  that  they  should  convert  it  into  money,  and  reinvest  that 


302         SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY 

money,  trusts  appropriate  to  those  purposes  should  be  inserted.  If  the 
fund  consists  of  investments  which  the  trustees  may  retain,  they  should 
nevertheless  be  expressly  authorised  to  sell  or  otherwise  convert  them 
into  money,  and  reinvest  that  money ;  for  the  duty  of  a  trustee,  except 
when  the  nature  of  the  fund  provokes  the  application  of  a  contrary 
rule,  is  to  retain,  and  not  to  convert,  what  is  intrusted  to  him.  Hence 
what  are  called  "  powers  of  sale,"  and  "  powers  to  alter  and  vary,"  are 
needed  in  order  to  make  it  possible  to  comply  with  such  requirements 
of  prudence  or  reasonable  wishes  of  beneficiaries  as  may  arise  or  be 
expressed  in  the  course  of  the  period  throughout  which  the  settlement 
may  last.  It  is,  indeed,  only  generally,  and  not  universally,  true  that 
settlors  wish  it  to  be  possible,  while  the  settlement  continues,  for  the 
subject  of  it  to  be  changed.  In  some  cases,  of  which  settlements  of 
family  estates  and  of  valuable  works  of  art  frequently  afford  examples, 
the  settlors  much  desire  the  preservation  of  the  particular  land  and 
chattels  ;  but  in  the  case  of  land  and  of  chattels  so  settled  as  to  devolve 
with  land,  the  legislature  in  1882  deprived  their  owners  of  the  power 
•of  gratifying  that  desire  (see  Settled  Land  Acts).  Chattels,  if  not 
so  settled  as  to  devolve  with  land,  may  still  be  so  settled  as  to  be 
inalienable  while  the  trusts  last;  but,  generally,  powers  of  sale  and 
of  variation  of  investment  are  needed  in  settlements,  as  well  as  often 
trusts  to  at  once  invest. 

The  law  to  which  these  powers  and  trusts  are  related  has  undergone 
much  change  in  the  last  fifty  years.  At  the  beginning  of  that  period 
s.  trust  or  duty  to  invest  for  the  benefit  of  others  required  the  trustee 
to  purchase  with  the  money  perpetual  three  per  cent,  per  annum 
annuities  of  the  Government  of  the  United  Kingdom.  Now  a  like  trust 
or  duty  requires  the  trustee  to  invest  the  money  in  or  on  some  or  one 
of  the  fifteen  kinds  of  purchases  and  loans  described  in  the  Trustee  Act, 
1893,  s.  1 ;  Colonial  Stock  Act,  1900 ;  R.  S.  C,  Order  22,  r.  17,  as  printed  in 
Annual  Practice,  1908.  In  the  former  state  of  the  law  it  was  thought 
to  be  expedient  to  insert  in  settlements  express  trusts  or  powers  which 
enabled  trustees  to  invest  otherwise  than  in  the  purchase  of  consols. 
Until,  however,  railway  building  in  England  had  advanced  far,  few 
:settlements  authorised  any  additional  investments  except  loans  on 
mortgage  of  land ;  but  from  about  the  middle  of  the  nineteenth  century 
settlors  continuously  added  to  the  kinds  of  investments  their  trustees 
might  choose,  and  from  time  to  time  the  legislature  also  opened  other 
investments  to  the  choice  of  trustees  generally.  The  wide  scope  now 
given  to  it  suggests  that  no  other  choice  need  be  authorised  by  settlors, 
and  in  many  cases  the  statutory  rule  alone  is  wisely  relied  on.  Never* 
theless,  more  frequently,  settlements  enable  trustees  to  make  some 
investments  not  specified  in  the  Act,  and  describe  together  all  the  kinds 
of  purchases  and  loans  in  or  upon  which  the  money  may  be  invested. 
So  a  trustee  may  always  have  in  his  own  keeping  a  description  of  the 
investments  which  he  may  choose  from. 

The  precautions  trustees  need  to  observe  in  performing  and  exercising 
their  duty  and  choice  in  investing  are  in  part  prescribed  by  the  Trustee 
Act  of  1893,  ss.  2-9,  and  1894,  ss.  3-4 ;  and  the  rest  are  ascertained  by 
judgments.  As  these  rules  do  not  give  to  trustees  all  the  liberty  which 
it  is  thought  safe  and  convenient  to  give  them,  it  is  usual  to  insert  an 
express  authority  to  exercise  that  liberty,  with  reference  both  to  the 
acceptance  of  mortgages,  and  to  the  release  of  property  from  them. 

Usually  the  consent  of  the  intended  husband  and  wife,  or  of  the 


SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY         303 

survivor  of  them,  is  expressly  required  to  every  exercise  by  the  trustees, 
during  the  lives  of  the  husband  and  wife,  or  the  life  of  the  survivor 
of  them,  of  powers  relating  to  investments. 

Sometimes  it  is  desired  that  the  trustees  of  settlements  of  personalty 
should  be  able  to  purchase  a  house  for  the  residence  of  the  tenant  in 
possession  of  the  settled  property  or  other  real  estate,  for  his  or  her 
enjoyment.  For  that  purpose  an  express  power  is  needed;  and  it  is 
usual  to  accompany  it  with  a  direction  that  the  house  or  other  real 
estate  purchased  shall  be  conveyed  to  the  trustees  upon  trust  at  the 
request,  in  the  case  of  a  marriage  settlement,  of  the  intended  husband  and 
wife,  or  the  survivor  of  them,  during  their,  his,  or  her  lives  or  life,  and 
afterwards,  at  the  discretion  of  the  trustees,  to  resell  the  property,  and 
to  hold  the  money  produced  by  sale  upon  the  trusts  which  would  be 
then  applicable  to  the  money  wherewith  the  house  or  realty  shall  have 
been  purchased  if  it  had  not  been  so  invested.  The  trustees  are 
authorised  to  pay  for  repairs  and  insurance  out  of  rents,  if  any,  and  to 
hold  the  surplus  as  applicable  like  yearly  produce  of  the  settled  fund, 
and  to  permit,  if  that  be  the  intent,  the  tenant  for  life  to  live  in  and 
occupy  the  property  rent  free.  Powers  of  exchange  and  leasing  are  also 
given  to  the  trustees. 

To  the  above-described  administrative  powers  there  are  now  fre- 
quently added  authorities  to  trustees  to  delegate  to  and  pay  agents  to 
transact  business  and  do  things  needed  to  be  done  in  the  trust,  and  to 
authorise  trustees  engaged  in  any  business  to  charge  and  retain  money 
in  payment  for  doing  business  of  that  kind  on  behalf  of  the  trustees,  as 
if  he  were  not  himself  a  trustee.  These  clauses  are  attempts  to  modify 
an  inconvenient  operation  of  the  maxims,  Delegatus  non  potest  delegare^ 
and  "  A  trustee  must  not  make  profit  from  his  trust." 

In  some  settlements,  among  the  administrative  clauses  are  inserted 
definitions  of  the  word  "  trustees,"  which  enable  that  word  to  be  used 
alone  throughout  the  deed  to  designate  the  persons  who  from  time  to 
time  shall  be  charged  with  the  duties  and  clothed  with  the  powers 
imposed  and  conferred  on  the  trustees  originally. 

Appointment  of  New  Trudees. — The  instrument  ordinarily  ends  with 
a  declaration  that  the  intended  husband  and  wife  during  their  joint 
lives,  and  the  survivor  of  them  during  his  or  her  life,  shall  during  those 
periods  be  the  persons  and  person  nominated  for  the  purpose  of  appoint- 
ing new  trustees  of  the  trusts  thereby  created  (Trustee  Act,  1893,  s.  10). 
If  there  be  no  such  person  able  and  willing  to  act,  that  section  designates 
others  who  may  appoint  new  trustees  in  specified  cases. 

Covenants  to  Settle  After-acquired  Property. — A  not  infrequent  pro- 
vision in  a  personal  property  settlement  on  marriage  is  what  is  commonly 
called  a  "  covenant  to  settle  after-acquired  property  "  of  the  wife.  It  is 
not  technically  a  "usual"  one  {In  re  Maddy,  [1901]  2  Ch.  820);  but  it 
is  one  the  Court  ordinarily  approves  of  for  infants  {In  re  Johnson,  [1891] 
3  Ch.  48,  51).  Such  a  covenant  may  be,  and  has  been,  applied  to  after- 
acquired  property  of  an  intended  husband,  and  it  might  be  made  a 
constituent  of  a  real  property  settlement ;  but,  such  examples  of  it  are 
rare.  In  its  most  exhaustive  form  it  has  a  wider  scope  than  that  sug- 
gested by  its  usual  appellation,  and  is  made  to  embrace  all  the  property, 
other  than  that  already  settled  by  specific  description,  to  which  at  the 
marriage  the  wife  may  be,  or  then  or  afterwards  during  the  coverture 
may  become,  either  entitled  to  or  entitled  to  appoint  as  she  may  choose. 
Usually  acquisitions  of  small  value,  and  such  property  as  jewels  and 


304         SETTLEMENTS;  SETTLEIMENTS  OF  PEOPERTY 

furniture,  are  excepted.  In  settlements  on  marriages  made  before  1883, 
the  intended  husband's  covenant  was  often  the  most  important  one  for 
the  purpose  of  binding  the  wife's  after-acquired  property;  but  since 
the  destruction  by  the  Married  Women's  Property  Act,  1882,  and  the 
Married  Women's  Property  Act,  1907,  of  a  husband's  marital  right  to 
his  wife's  personalty,  and  to  an  estate  during  his  and  her  joint  lives  in 
her  real  estate,  the  intended  wife's  contract  is  that  of  chief  value.  The 
beneficial  trusts  are  in  most  cases  declared  by  reference  to  those  already 
declared  in  the  same  deed  of  property  specifically  described  and  settled 
by  or  on  behalf  of  the  wife,  with,  if  the  case  so  require,  appropriate 
exceptions  and  variations.  It  is  necessary,  however,  to  authorise  the 
trustees  to  make  any  conversions  into  money  and  reinvestments,  which 
may  be  needed  to  bring  property  transferred  to  them,  pursuant  to  the 
covenant,  into  the  state  fit  for  its  administration  as  settled  property. 
The  sale  of  life-interests  of  the  wife,  except  at  her  request,  is,  indeed, 
usually  prohibited,  or  such  interests  are  excepted,  and  only  a  restraint 
during  coverture  of  the  wife's  power  of  alienation  imposed ;  and  the 
trustees  are  authorised  to  defer  the  conversion  of  expectant  interests 
until  they  fall  into  possession,  and  to  retain  property  of  a  wasting  or 
precarious  character.  Eealty  is  subjected  to  a  trust  for  sale  and  so 
impressed  with  the  nature  of  personalty.  All  actual  income  is  directed 
to  be  treated  as  such ;  and  the  trustees  are  exonerated  from  responsi- 
bility for  failure  to  enforce  the  covenant,  unless  requested,  and  from 
obligation  to  accept  onerous  property. 

ProvisioTis  for  Contingency  of  a  Second  Marriage. — The  scope  of  a 
mere  marriage  settlement  is  limited  by  the  possible  consequences  of 
the  marriage  intended  at  its  date.  Another  contingency  needs  to  be 
borne  in  mind.  There  may  be  one  child  of  the  marriage,  and  the 
husband  or  wife  may  then  die,  and  the  survivor  may  wish  to  marry 
again.  But  he  or  she,  though  probably  entitled  to  the  income  accruing 
during  his  or  her  life  from  the  whole  fund — a  fund,  perhaps,  contributed 
in  part  by  each  of  the  spouses  at  the  first  marriage — cannot  dispose 
of  any  part  of  the  capital  which  he  or  she  then  settled.  That  is 
expectantly,  though  in  most  cases  contingently  only,  the  property  of 
the  one  child  of  the  past  marriage.  A  wife's  fortune  so  settled  is  often 
all  that  she  has,  or  will  at  any  time  have ;  and  if  the  settlement  made 
by  a  husband  is  seldom  equally  exhaustive  of  his  fortune,  yet  it  some- 
times is,  and  in  many  cases  it  is  sufficiently  exhaustive  to  make  the 
settlement  on  his  first  marriage,  if  wholly  irrevocable,  a  serious  hin- 
drance to  his  contracting  another.  It  is  a  duty,  the  performance  of 
which  must  often  involve  sentimental  difficulties,  to  consider  whether 
in  the  particular  case  provision  for  the  above-described  possibility 
should  be  made,  and  to  suggest  the  nature  of  the  appropriate  provision. 
Mr.  Waley,  after  pointing  out  the  need  of  such  a  provision  in  many 
settlements  of  a  girl's  fortune,  added :  "  The  nature  and  extent  of  the 
power  so  given  may  vary  considerably.  It  may  be  exercisable  at  any 
time  after  the  husband's  death,  or  only  upon  a  future  marriage ;  may 
apply  to  a  fixed  sum  or  share  of  the  trust  funds,  or  to  a  sum  or  share 
dependent  on  the  number  of  children  of  the  first  marriage ;  and  may 
enable  the  wife  to  direct  the  destination  of  the  amount,  subject  to  the 
power,  according  to  her  own  pleasure,  or  in  favour  only  of  a  future 
husband  and  the  issue  of  a  future  marriage  "  (3  Dav.  Conv.,  2nd  ed., 
161;  3rd  ed.,  221). 

Settlements  of  Land — Covenants  for  Title — Fin-Money — Life  Estate — 


SETTLEMENTS;  SETTLEMENTS  OF  PKOPERTY         305 

Jointure — Portions  Term. — Settlements  of  land  are  made  by  means  of 
such  conveyances  as  in  each  case  are  appropriate  to  the  tenure  of  the 
hereditaments  or  the  estate  in  it  to  be  settled.  Freeholds  are  granted, 
copyholds  covenanted  to  be  surrcEdered,  and  leaseholds  assigned.  Con- 
cerning the  covenants  for  title  which  should  be  inserted,  some  discrepancy 
of  theory  and  practice  has  existed,  but,  probably,  the  covenant  for 
further  assurance  which  has  since  1881  been  implied  in  a  conveyance 
by  the  person  who  conveys  being  expressed  to  convey  as  settlor,  is  now 
generally  regarded  as  sufficient  (Conveyancing  Acts,  by  Wolstenholme 
and  Turner,  5th  ed.,  p.  33,  note  to  s.  7  (1)  E.  of  the  Act  of  1881).  If 
a  landowner  on  his  marriage  proposes  to  so  settle  his  estate  as  that 
it  shall  devolve  on  his  descendants  in  its  entirety,  the  contents  of  the 
deed  of  settlement  are  as  follows : — After  stating  his  intention  to  marry, 
his  seisin,  and  the  agreement  to  settle,  he  grants  the  estate  to  specified 
persons  and  their  heirs,  or  in  fee  simple,  to  the  use  of  himself  and  his 
heirs,  or  in  fee  simple,  till  the  marriage  shall  be  solemnised,  and  after- 
wards to  the  use  that  the  trustees  shall,  during  his  own  and  his  intended 
wife's  joint  lives,  and  out  of  the  rents  and  profits,  receive  a  specified 
yearly  rent-charge,  and  stand  possessed  thereof,  for  the  wife's  separate 
and  inalienable  use.  This  rent  is  called  "  pin-money."  Its  amount  is 
small  relatively  to  the  jointure  rent-charge,  presently  to  be  described, 
and  not  infrequently  the  pin-money  provision  is  altogether  omitted, 
its  object,  that  of  securing  an  income  sufficient  to  supply  the  merely 
personal  needs  of  the  wife  during  her  husband's  life,  being  either  not 
insisted  on  or  otherwise  provided  for.  Subject  to  the  pin-money  limi- 
tation, if  there  be  one,  and  to  the  statutory  powers  (44  &  45  Vict, 
c.  41,  8.  44;  see  Eent-Charge)  for  the  recovery  of  the  rent-charge, 
and  to  any  term  which  may  be  created  in  exercise  of  one  of  those 
powers  (Conveyancing  Act,  1881,  s.  44),  or  absolutely,  if  the  pin- 
money  limitations  be  omitted,  the  land  is  limited  immediately  after 
the  marriage  to  the  use  of  the  settlor  during  his  life,  without  impeach- 
ment of  waste  (see  Waste).  Next  follows  a  limitation  from  the  death 
of  the  settlor  to  the  use  that  the  wife,  if  she  survive  him,  shall  out  of 
the  rents  and  profits  receive  during  her  life  another  and  larger  yearly 
rent-charge,  to  be,  as  it  is  commonly  expressed,  "  for  her  jointure  (see 
Husband  and  Wife),  and  in  bar  of  her  dower  "  (see  Husband  and 
Wife).  At  the  death  of  the  settlor  also,  subject  or  not  subject,  as  the 
event  may  require,  to  a  jointure  rent-charge  and  the  remedies  for  its 
recovery,  the  estate  is  limited  to  the  use  of  the  trustees  for  a  long  term 
of  years  upon  trusts  there  described  as  "  hereinafter  expressed."  They 
are  trusts  for  raising  money  for  portions  of  younger  children,  if  any, 
and  are  more  particularly  described  below. 

Remainders  to  Issue  in  Tail. — Subject  to  the  above-mentioned  term 
and  its  trusts,  the  estate  is  limited,  from  the  death  of  the  settlor,  to 
the  children  of  the  marriage  in  tail.  Further  than  that,  it  is  difficult 
to  describe  any  form  of  limitations  as  usual.  The  term  "  strict  settle- 
ment "  imports  no  more.  In  the  use  of  limitations  in  tail  and  in  tail-male, 
and  of  limitations  to  daughters  successively  and  in  common  with 
cross-remainders  between  them,  the  settlements  which  come  under 
observation  exhibit  more  variety  than  uniformity. 

Mr.  Jarman  thought  that,  according  to  the  usual  manner  in  which 
the  family  estate  of  an  English  nobleman  or  gentleman  was  settled 
previously  to  his  marriage,  the  limitations  were  to  the  use  of  the 
intended  husband  for  his  life,  with  remainder  to  the  first  and  other 

VOL,  XIII.  20 


306         SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY 

sons  of  the  marriage  successively  in  tail,  with  remainder  to  the  daughters 
as  tenants  in  common  in  tail  (9  Jarm.  Byth.  Conv.,  2nd  ed.,  212n.). 
This  opinion  seems  to  be  verified  by  observation  of  the  older  settle- 
ments made  by  owners  of  comparatively  small  estates ;  but  even  the 
older  settlements  made  by  noblemen  and  by  large  landowners,  or  by 
owners  of  estates  long  held  by  their  families,  generally  exhibit  more 
complex  limitations.  Limitations  in  tail-male  precede  those  in  tail 
general,  and  often  limitations  to  daughters  successively,  instead  of  in 
common.  The  variations  in  strict  settlements  are  principally  occasioned 
by  the  different  degrees  in  which  the  principle  of  preferring  male  to  female 
issue  is  allowed  to  countervail  the  claim  of  propinquity  of  relationship 
to  the  person  last  seised  (9  Jarm.  Byth.  Conv.,  2nd  ed.,  222).  Obviously, 
the  prevalence  of  either  idea  over  the  other  will  depend  at  least  as 
much  on  the  prejudices  of  the  settlor  as  on  his  circumstances  and  those 
of  his  property  above  referred  to.  Where,  though  the  settlor — to  use 
a  common  expression — wishes  to  make  an  eldest  son,  the  claim  of 
propinquity  of  relationship  to  him  is  to  his  mind  the  more  cogent  idea, 
he  will  settle  his  land,  subject  to  such  provisions  for  himself,  his  wife, 
and  his  younger  children  as  he  may  think  fit,  on  first  and  other  sons 
successively  in  tail,  with  remainder  to  daughters  in  common  in  tail, 
with  remainder  to  his  own  right  heirs.  Then  the  land  at  his  death 
will  go  to  his  eldest  son  for  an  estate  descendible  to  all  the  descendants, 
female  as  well  as  male,  of  that  eldest  son,  though  to  males  before 
females;  on  the  determination,  otherwise  than  by  a  disentailing 
assurance,  or  on  failure  of  that  estate,  the  land  will  go  to  a  second 
and  to  all  the  other  sons  successively  according  to  seniority  for  like 
estates,  and  on  their  like  determination  or  failure,  to  the  daughters 
in  common  and  their  descendants. 

Where  the  principle  of  preferring  male  to  female  issue  is  the  more 
prevalent  in  the  settlor's  mind — where  his  first  wish  is  to  preserve  from 
time  to  time  the  ownership  of  the  whole  property  in  the  eldest  male  of 
the  eldest  male  line  of  his  descendants  for  the  time  being — he  will  insert 
in  his  settlement  at  least  limitations  in  tail-male  to  his  sons  successively, 
and  then  limitations  to  them  in  tail  general  successively.  So,  on  a 
failure  of  male  issue  of  every  elder  son,  the  estate  will  shift  to  a  younger 
son  or  his  male  issue,  and  female  issue  of  elder  sons  will  be  postponed 
to  male  issue  of  younger  sons,  and  the  female  issue  of  the  youngest  son 
to  his  male  issue.  This  involves  the  possibility  of  the  estate  being 
enjoyed  by  an  elder  son  and  his  male  issue  for,  conceivably,  generations, 
and  then  passing  to  cousins,  male  descendants  of  a  younger  son  of  the 
settlor,  and  on  failure  of  his  male  descendants,  reverting  to  daughters 
of  the  elder  line.  But  such  occurrences  are  rare,  the  limitations  later 
in  order  of  limitation  being  usually  defeated  by  a  disentailing  deed 
executed  by  a  tenant  in  tail  under  an  earlier  limitation.  Often  a 
preference  for  the  male  line  is  satisfied  by  such  limitations  as  these, 
and  they  are  followed  by  limitations  to  the  daughters  of  the  settlor  as 
tenants  in  common  in  tail,  with  cross-remainders  between  them  in  tail ; 
but  in  other  cases  settlors  wish  to  carry  it  further,  by  limiting  the 
estate  to  the  daughters  successively  in  tail-male  or  in  tail,  or  both.  If 
the  settlor  chooses  to  limit  the  property  to  the  daughters  successively 
in  tail-male,  it  seems  to  be  more  congruous  with  the  principle  to  which 
he  is  giving  effect,  to  place  those  limitations  after  the  estates  in  tail- 
male  and  before  those  in  tail  general  which  are  limited  to  sons  than 
after  the  estates  in  tail  general  limited  to  sons  to  limit  like  estates  to 
the  daughters  successively. 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPEKTY         307 

LimitatioTis  to  Preserve  Contingent  Remainders. — Until  after  the  Real 
Property  Act,  1845,  came  into  operation  on  the  Ist  of  October  in  that 
year,  every  well-drawn  settlement  of  land  which  contained  limitations 
of  the  legal  estate  to  unborn  children  of  tenants  for  life  contained  also 
limitations  of  uses,  known  as  "  estates  to  preserve  contingent  remainders." 
The  limitations  to  children  create  such  remainders ;  and  as  contingent 
remainders,  in  order  to  vest  at  all,  were,  before  the  legislation  presently 
referred  to,  required  to  vest  during  the  continuance  of  the  preceding 
particular  estate  or  at  the  instance  of  its  determination  {Archers  Case, 
1597,  1  Rep.  66a ;  76  E.  R.  146 ;  Fearne,  Cont.  Rem.,  307),  the  limita- 
tions to  children  were  liable  to  be  defeated  by  the  forfeiture,  surrender, 
or  merger  of  their  parent's  life  estate.  The  limitation  of  estates  to 
preserve  contingent  remainders — which  was  a  limitation,  after  the 
determination  of  the  life  estate  by  any  means  in  the  lifetime  of  its 
tenant,  to  the  use  of  trustees  and  their  heirs  during  the  life  of  that 
tenant,  was  expressed  to  be  in  trust  to  preserve  the  remainders,  and 
subject  thereto  for  the  tenant  for  life — guarded  the  children's  estates 
from  this  risk,  by  interposing  another  estate  of  freehold  (Cholmley's  Case, 
1597,  2  Rep.  50a ;  76  E.  R.  527),  and  one  less  exposed  to  the  danger  of 
destruction  than  the  parent's  estate,  between  that  estate  and  the  re- 
mainders, it  being  so  framed  as  to  determine  at  the  moment  at  which 
the  children's  estates  were  made  to  begin.  The  Act  of  1845  put  an 
end  to  the  need  of  using  estates  to  preserve  contingent  remainders  in 
ordinary  settlements ;  but  both  previous  and  subsequent  legislation  has 
been  directed  to  a  restriction  of  the  scope  of  the  common-law  rule  con- 
cerning the  vesting  of  contingent  remainders,  and  has  at  last  almost  if 
not  quite  effected  its  abolition.  As  an  element  of  an  ordinary  settle- 
ment, the  limitation  of  estates  to  preserve  contingent  remainders  is 
obsolete  (see  Contingent  Remainders). 

Trusts  of  the  Portions  Term. — The  trusts  of  the  term  limited  to 
trustees  for  the  purpose  of  enabling  them  to  raise  out  of  the  estate 
money  for  portions  for  younger  children  constitute  now  one  of  the 
largest  parts  of  a  real  property  settlement,  and,  notwithstanding  the 
skilful  labour  in  expressing  those  trusts  employed  by  generations  of  con- 
veyancers, the  task  of  framing  them  correctly  is  still  one  of  difficulty. 
They  constitute  a  second  settlement  within  the  original  one.  That 
settles  the  land,  the  trusts  of  the  portions  term  settles  money  to  be 
raised  out  of  the  land. 

A  primary  difficulty  lies  in  defining  the  class  of  children  intended 
to  become  portionists,  and  that  difficulty  is  enhanced  by  a  difference  of 
opinion  among  conveyancers  concerning  the  propriety  of  including  in 
certain  events  particular  persons  in  that  class.  Broadly  speaking,  all 
would  admit  that  the  children  who  should  be  portionists  are  such  as 
shall  attain  twenty-one,  or,  being  girls,  marry  under  that  age,  and  as 
shall  not  become  entitled  under  the  settlement  to  the  estate  itself.  The 
judgment  of  the  Court  of  Chancery,  that  this  is  generally  the  intention 
of  settlors  in  making  provisions  of  the  kind,  led  it  early  and  in  many 
•cases  to  interpret,  as  bearing  that  meaning,  many  clauses  which  did  not 
clearly  express  it.  For  example,  children  dying  in  infancy  have  been 
excluded  {Poxdet  v.  Poulet,  1683,  1  Vern.  204,  321;  23  E.  R.  415;  Warr 
V.  Warr,  1702,  Pre.  in  Ch.  213;  24  E.  R.  104),  and  others  who  had 
attained  twenty-one  have  been  held  to  be  entitled  to  portions  (Emperor 
V.  Rolfe,  1749,  1  Ves.  208 ;  27  E.  R.  986),  although  in  both  cases  there 
were  grammatical  difficulties  in  making  those  interpretations  of  the 


308         SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY 

particular  trusts.  The  term  "  younger  children  "  has  been  interpreted 
as  excluding  a  younger  son  who  attained  twenty-one  in  his  father's 
lifetime,  and  on  his  death  succeeded  to  possession  of  the  settled  estate 
{Chadwick  v.  Doleman,  1705,  2  Vern.  528) ;  and  an  eldest  daughter  who 
has  not  been  entitled  to  the  estate  has  been  held  entitled  as  a  younger 
child  to  a  portion  {Beale  v.  Beetle,  1713,  1  P.  Wms.  244 ;  24  E.  R.  373 ; 
Gilb.  93 ;  25  E.  R.  64).  Lord  Cairns,  in  Collingwood  v.  Stanhope,  1869,^ 
L.  R.  4  H.  L.  43,  cited  as  an  expression  of  the  law  the  following  pas- 
sages from  a  judgment  of  the  then  Lord  Chancellor  Hatherley,  delivered 
when  a  Yice-Chancellor :  "Where  the  bulk  of  an  estate  is  settled  in 
strict  settlement,  and  by  the  same  settlement  portions  are  provided  for 
younger  children,  no  child  taking  the  bulk  of  the  estate  by  virtue  of  the 
limitations  in  strict  settlement  shall  take  any  benefit  from  the  portions ; " 
and  "  the  intention  of  the  parties  being  clearly  to  provide  portions  for 
all  the  children,  except  such  as  should  so  take  the  estate,  the  Court  will 
carry  that  intention  into  effect"  (Macoubrey  v.  Jones,  1856,  2  K.  &  J. 
684,  690,  691 ;  69  E.  R.  957). 

The  forms  in  most  frequent  use  by  modern  conveyancers  appear  to 
have  been  framed  to  express  what  the  Court  has  held  the  older  and  less 
precise  forms  to  mean.  These  more  recent  forms  usually  make  all  the 
children  portionists,  except  an  eldest  or  only  son  for  the  time  being 
entitled  under  the  limitations  of  the  settlement  to  the  settled  heredita- 
ments for  an  estate  tail  in  possession  or  remainder;  but  these  forms 
also  have  been  differently  interpreted  by  great  judges,  and,  what  is  more 
remarkable,  have  not  wholly  satisfied  conveyancers  when  they  have  given 
full  effect  to  the  above-described  interpretation  of  the  Court.  Thus,  in 
a  case  where  the  definition  of  the  class  who  were  to  be  portionists  was. 
of  the  kind  just  described.  Lord  Westbury  held  that  an  eldest  son, 
entitled  in  remainder  to  an  estate  in  tail-male  made  under  the  settle- 
ment, having  lived  to  attain  twenty-one,  married  and  died  in  the  lifetime 
of  his  father  and  a  prior  tenant  for  life,  without  leaving  male  issue,  and 
apparently  without  having  enlarged  his  estate,  his  administratrix  was 
entitled  to  share  in  the  money  charged  for  portions  (Mlison  v.  Thomas,. 
1862,  1  De  a,  J.  &  S.  18 ;  46  E.  R.  7).  In  so  deciding,  the  Lord  Chan- 
cellor reversed  the  judgment  of  Vice-Chancellor  Kindersley,  and  Mr. 
Waley,  while  admitting  that  Lord  Westbury 's  decision  might  legitimately 
result  from  the  presumptions  of  law  applicable  to  the  subject,  thought 
it  opposed  to  convenience  and  to  what  is  usually  the  intention  (3  Dav. 
Conv.,  3rd  ed.,  415?i.). 

Usually,  the  settlement  directs  that  the  money  charged  for  portions- 
shall  be  raised  on  the  attainment  by  the  portionists  of  their  majority,  or 
on  their  earlier  marriage,  and  the  death  of  the  parent  who  has  a  life 
estate  in  the  land  charged ;  but  the  trustees  are  in  most  cases  authorised 
to  raise  the  portions  during  the  life  of  the  parent,  with  his  or  her  consent. 
From  the  time  at  which  the  sum  charged  ought  to  be  raised  it  bears 
interest  (1731,  2  P.  Wms.  669  ;  24  E.  R.  907)  at  four  per  cent,  per  annum, 
both  in  England  {Bryant  v.  Speke,  1748,  1  Ves.  171 ;  27  E.  R.  963),  and 
now  in  Ireland  (General  Order  211,  made  under  the  Chancery  (Ireland)' 
Act,  1867.  But  see  now  In  re  Bowlls,  [1900]  2  Ch.  107,  118 ;  In  re 
Woods,  [1904]  2  Ch.  4;  In  re  Hunt,  [1902]  2  Ch.  314;  In  re  Davis,  ibid. 
318,  note). 

The  means  by  which  the  trustees  may  raise  the  money  are  usually 
prescribed  by  the  trusts.  Use  of  the  rents  and  profits,  and  sale  or 
mortgage  of  all  or  any  of  the  charged  hereditaments  for  all  or  any  part. 


SETTLEMENTS;  SETTLEMENTS  OF  PROPERTY         309 

of  the  trust  term,  and  the  sale  of  timber  and  minerals,  or  some  of  those 
means,  are  in  most  cases  specified,  and  mortgage  is  the  means  most 
frequently  used.  The  sum  to  be  raised  is  often,  but  not  always,  made 
to  depend  on  the  number  of  children  who  may  need  portions.  The 
trusts  declared  of  the  money  when  raised,  or  which  may  be  raised, 
resemble  generally  those  in  a  marriage  settlement  of  personalty,  but 
the  power  of  appointing  among  the  beneficiaries  is  usually  given  to 
the  parent  whose  estate  is  charged,  instead  of  to  both  parents  and 
the  survivor  of  them. 

As  interest  does  not  accrue,  with  respect  to  money  charged  for 
portions,  until  the  time  at  which  it  ought  to  be  raised  has  arrived,  it 
follows  that  if  at  the  death  of  the  parent  whose  estate  is  charged  there 
are  infant  expectant  portionists,  no  income  can  be  derived  from  the 
portion  to  be  applied  under  the  statutory  power  for  the  maintenance 
and  education  of  the  expectant  portionists.  Their  need  is  usually  pro- 
vided for  by  charging,  besides  the  money  to  be  raised  for  portions, 
maintenance  money  equal  to  four,  or  now  perhaps  {In  re  Bowlls,  ils.) 
three,  per  cent,  per  annum  on  the  expectant  portions  of  the  infants 
during  the  period  intervening  between  the  parent's  death  and  the  death 
or  attainment  of  majority,  or,  in  the  case  of  a  girl,  the  marriage  of  every 
portionist. 

Advancement  is  provided  for  by  authorising  the  trustees  to  raise 
money  for  that  purpose.  Where  the  sum  charged  varies  with  the 
number  of  portionists,  the  ordinary  course  is  to  declare  that  the  ad- 
vancement shall  not  be  treated  as  part  of  the  amount  raisable  for 
portions,  except  in  the  event  of  the  child  advanced  becoming  entitled 
to  a  portion,  or  in  that  of  the  portions,  with  the  advancement,  ex- 
ceeding the  prescribed  maximum  (3  Dav.  Conv.,  3rd  ed.,  454w.),  in  which 
case,  adds  the  writer  cited,  the  excess  is  to  sink ;  but  query. 

The  trusts  of  the  portions  term  closes  with  a  declaration  that, 
subject  to  the  prior  trusts  and  to  the  rights  of  the  trustees  in  respect  of 
expenses,  the  surplus  rents  and  profits  shall  go  to  the  immediate  rever- 
sioner. Formerly,  a  proviso  for  cesser  of  the  term  was  added;  but 
since  1845,  Lord  Brougham's  Act,  8  &  9  Vict.  c.  112,  for  rendering  the 
assignment  of  satisfied  terms  unnecessary,  has  been  regarded  as  supplying 
the  place  of  that  proviso.  If,  however,  the  term  and  charge  be  created 
by  the  exercise  of  a  power,  that  power  may  require  its  insertion.  If 
inserted,  it  should  be  made  applicable,  if  the  trusts  never  arise;  if 
they  become  unnecessary  or  incapable  of  taking  effect,  and  if  they  be 
performed  (Sugden,   Vendors  and  Purchasers,  11th  ed.,  774). 

Provisions  for  another  Man'iage. — In  this  case,  again,  it  is  proper  to 
consider  the  contingency  of  the  settlor's  surviving  the  spouse  with  whom 
marriage  is  contemplated,  and  marrying  again.  If  no  other  provisions 
than  those  already  described  be  made  by  the  settlement  on  the  first 
marriage,  the  settlor,  upon  contracting  a  second,  will  not,  if  there  be 
issue  of  the  first,  have  any  estate  or  interest  in  or  power  over  the  land 
comprised  in  the  settlement  on  his  first  marriage,  other  than  his  own 
life  estate,  and  the  reversion  or  remainder  in  fee  expectant  on  the 
remainders  in  tail  to  his  existing  family.  There  may  be,  and  often 
are,  reasons  why  no  special  provision  for  this  contingency  need  or  can 
be  made  in  the  supposed  settlement  on  the  first  marriage,  but  often  it 
may  be  possible  and  prudent  to  make  such  a  provision.  One  sometimes 
resorted  to  is  that  of  limiting  in  the  first  settlement  estates  in  tail  to 
sons  of  the  settlor  by  a  subsequent  marriage  after  those  limited  to  the 


310         SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY 

sons  of  the  first  marriage,  and,  supposing  the  settlement  to  contain  a 
provision  for  raising  portions,  to  entitle  all  the  younger  children  of  the 
settlor  to  participate  in  the  portions,  and  to  charge  the  estate  with  a 
rent-charge  for  any  spouse  who  may  survive  him  or  her ;  but  besides 
the  sentimental  objections  to  this  method,  such  provisions  in  a  settle- 
ment on  one  marriage  for  an  after-taken  wife  or  husband  and  issue  by 
that  spouse  fail  to  obtain  the  support  of  the  consideration  of  marriage 
{De  Mestre  v.  West,  [1891]  A.  C.  264).  It  therefore  seems  preferable,  if 
in  a  marriage  settlement  any  provisions  for  a  subsequent  marriage  are 
made,  to  make  such  provisions  by  means  of  a  power  reserved  or  given 
to  the  settlor  by  the  first  settlement.  That  power  will  enable  him  or 
her  on  a  second  marriage  to  charge  the  land  with  a  rent-charge  by  way 
of  jointure  for  the  after-taken  wife,  or  by  way  of  corresponding  pro- 
vision for  the  after-taken  husband,  to  charge  it  with  money  for  portions 
for  children  of  the  subsequent  marriage,  and  to  create  a  term,  with 
appropriate  trusts,  for  raising  that  money. 

Administrative  Powers. — Until  the  year  1883  it  was  usual  to  insert 
a  large  number  of  administrative  powers  in  a  settlement  of  real  estate, 
and  the  lack  of  them  would  have  caused  great  inconvenience,  but  they 
were  necessarily  very  long.  The  Settled  Land  Acts,  1882  to  1890,  have 
given  powers  of  sale,  exchange,  partition,  enfranchisement,  and  leasing 
to  tenants  for  life,  and  among  other  specified  tenants  in  possession,  and 
also  powers  to  invest  capital  money  and  to  apply  it  in  making  certain 
improvements  authorised  by  the  Settled  Land  Act,  1882,  s.  21,  iii.,  s.  25 ; 
S.  L.  A.,  1887  ;  S.  L.  A.,  1890,  s.  13 ;  and  some  other  statutes ;  and  the 
various  other  ways  which  have  made  the  insertion  of  powers  for  the  like 
purposes  in  settlements  themselves  unnecessary  (see  Settled  Land 
Acts).  Additional  powers  may  be  given;  and  in  some  settlements, 
especially  those  of  large  estates,  it  is  found  convenient  to  use  that 
liberty.  Those  of  the  administrative  powers  which  are  above  described 
as  usually  or  often  inserted  in  marriage  settlements  of  personalty,  and 
relate  to  other  matters  than  investment,  are  also  usually  or  often 
inserted  in  settlements  of  realty. 

The  Land  Transfer  Acts,  1875  (38  &  39  Vict.  c.  87,  s.  106),  ss.  68,  69  ; 
1897  (60  &  61  Vict.  c.  65),  s.  6,  contain  provisions  for  the  registration  of 
settled  land.  See  also  Land  Transfer  Rules,  1903,  1  cl.  (9)  78-82,  128, 
129,  186-190,  240 ;  Forms  6-12,  22-27.  The  statement  of  them  can  be 
more  conveniently  made  under  other  titles  than  that  of  this  article  (see 
Land  Tkansfer  ;  Registration  of  Title). 

Family  Settlements,  Resettlements,  and  Settlements  in  Support 
OF  A  Hereditary  Dignity. 

The  above-mentioned  motives  for  the  insertion  of  limitations  in  tail- 
male  before  limitations  in  tail  general,  and  limitations  to  daughters 
successively  instead  of  in  common,  generally  prevail  in  framing  what 
are  called  Family  Settlements.  Those  settlements  are  also,  in  most 
cases.  Resettlements  made  after  the  coming  of  age  of  the  eldest  son 
of  parents  on  whose  marriage  land  was  so  settled  that  he  is  tenant 
in  tail  of  it  in  remainder,  immediately  expectant  on  the  determina- 
tion of  the  estates  or  estate  for  life  of  both  or  one  of  his  parents.  The 
tenant  for  life  and  the  tenant  in  tail  in  remainder  can  together  bar 
their  existing  entail  and  dispose  of  the  whole  inheritance,  and  they 
frequently  find  it  convenient  to  do  so.     Two  other  occasions  for  making 


SETTLEMENTS;  SETTLEMENTS  OF  PROPEETY         311 

settlements  on  which  the  same  motives  frequently  prevail  are  those  on 
which  a  settlor  makes  provision  for  the  support  of  a  hereditary  dignity 
enjoyed  by  himself  or  by  an  object  of  his  bounty,  and  those  on  which 
large  landed  estates  are  settled  by  will.  In  family  settlements  and 
in  those,  whether  made  by  will  or  deed,  by  which  an  owner  endows 
another  person  in  the  first  instance,  a  further  complication  is  frequently 
caused  by  the  creation  of  several  life  estates,  followed  in  every  case 
by  remainders  in  tail-male  and  tail  general  to  the  issue  of  all,  or  some, 
or  one  of  the  tenants  for  life.  Settlements  of  these  kinds  sometimes 
contain  a  long  series  of  limitations  for  life,  every  one  followed  by 
remainders  in  tail,  which  may  suggest  to  a  person  unfamiliar  with  the 
working  of  such  dispositions  a  complexity  and  far-reaching  predeter- 
mination of  future  ownership,  seldom  if  ever  realised  in  their  operation. 
The  persons  to  whom  estates  for  life  with  remainders  in  tail  are  given 
are  usually  brothers,  and  sometimes  sisters,  of  the  first  tenant  for  life, 
and  afterwards,  perhaps,  his  uncles,  aunts,  cousins,  and  even  more 
remote  relations.  But  the  practical  effect  of  the  whole  is  little  more 
than  the  creation  of  a  private  canon  of  descent,  impossible  as  such 
a  creation  is  technically.  As  every  tenant  in  fee  simple  can  by  deed 
or  will  defeat  the  expectancy  of  his  heir,  so  every  one  of  the  above- 
mentioned  tenants  in  tail  when  in  possession,  or  with  the  aid  of  the 
tenant  in  possession  while  a  remainderman,  can  by  inroUed  deed  defeat 
all  the  limitations  subsequent  to  his  own,  and  acquire  the  fee  simple. 
So  the  imposing  series  of  destinations  is  usually  cut  short  within  a 
few  years  of  its  creation ;  but  although  far  less  effective  than  it  seems 
to  be,  such  a  settlement  often  serves  to  attain  the  wishes  of  its  maker, 
and  in  every  case  the  inability  or  indisposition  of  tenants  in  tail  to 
enlarge  their  estates,  or  the  failure  of  lines  of  issue,  or  both  causes 
combined,  may  enable  even  the  last  of  a  long  series  of  limitations  to 
eventually  take  effect  in  possession. 

The  creation  of  additional  life  estates  involves  almost  necessarily  the 
addition  of  corresponding  creations,  or  powers  in  the  tenants  for  life  to 
create  jointure  rent-charges  for  their  widows,  or,  in  the  case  of  female 
tenants  for  life,  for  their  surviving  husbands,  and  gross  sums  for  the 
portions  of  their  younger  children.  These  are  adaptations  to  the  varied 
circumstances  of  the  methods  of  accomplishing  like  objects  in  the  above- 
described  marriage  settlements  of  real  estate.  When,  as  is  most 
frequently  the  case,  provisions  of  income  for  the  surviving  spouses,  and 
of  gross  sums  for  the  portions  of  younger  children  of  tenants  for  life, 
other  than  the  first  in  order  of  limitation,  are  made  by  way  of  powers 
conferred  on  those  tenants  for  life,  it  is  usual  to  provide,  that,  though 
those  powers  may  be  exercised  before  the  donees  of  them  shall  become 
entitled  as  tenants  for  life  in  possession,  those  exercises  shall  not  be 
effectual  unless  they  or  their  issue  shall  become  so  entitled ;  that  the 
estate  shall  not  become  charged  with  larger  than  certain  specified 
amounts  of  rent-charges  and  portions  sums  respectively ;  that  the 
charges  made  by  several  donees!  shall  take  effect  in  the  order  of 
the  estates  of  the  donees  of  the  powers,  so  as  that  those  made  by  the 
earlier  life  tenants  shall  be  answered,  though  those  of  the  later  ones 
may  fail. 

A  resettlement  by  a  father  and  son,  being  tenants  for  life  in 
possession  and  in  tail  in  remainder  respectively,  usually  confirms  the 
old  or  creates  a  new  estate  for  life  in  the  father,  and  instead  of 
the  son's  estate  in  tail  gives  to  him  one  for  life  only,  with  remainders 


312         SETTLEMENTS;  SETTLEMENTS  OF  PEOPEETY 

to  his  issue  in  tail.  Other  life  estates  may  be  given  successively  to 
other  children  of  the  father,  with  a  remainder  in  tail,  after  every  one, 
to  the  issue  of  the  tenant  of  that  life  estate.  When  land  is  intended 
to  be  enjoyed  by  several  lines  of  issue  respectively,  it  is  customary, 
wherever  the  person  from  whom  any  inheritable  line  of  issue  is  to 
spring  is  living  when  the  settlement  is  made,  to  make  that  person  a 
tenant  for  life  only,  with  remainders  in  tail  to  his  issue.  Thus  in 
the  resettlement  just  referred  to,  not  only  the  father  and  his  eldest  son, 
but  also  the  father's  younger  sons  successively,  according  to  seniority, 
or  in  some  cases  the  daughters  also,  receive  life  estates,  every  one 
followed  by  remainders  in  tail  to  the  issue  of  its  tenant.  After  the 
limitations  to  the  youngest  existing  child  of  the  father,  and  that  child's 
issue,  remainders  usually  follow  to  future  children  of  the  father  in  tail 
special  and  general,  or  general  only.  In  order  to  accomplish  the  end  of 
this  course  of  settlement  in  a  case  where  the  instrument  is  a  will,  which 
may  not  become  an  operative  settlement  until  after  the  lapse  of  a  long 
period  from  its  execution,  and  children  unborn  at  the  date  of  the  will 
may  be  born  before  the  death  of  the  testator,  there  is  often  inserted  in 
such  a  will  a  proviso  that  in  every  case  in  which,  before  the  testator's 
death,  a  child  shall  be  born,  who  by  virtue  of  the  preceding  limitations, 
and  but  for  that  proviso,  would  be  a  tenant  in  tail  by  purchase,  shall  not 
be  so  entitled  in  tail,  but  shall  be  entitled  to  the  settled  hereditaments 
for  his  life  only,  without  impeachment  of  waste  and  with  remainder  to 
the  use  of  his  issue  as  are  given  to  tenants  for  life  of  the  same  class  in 
the  preceding  part  of  the  will. 

Name  and  Arms,  and  other  Shifting  Clauses. 

In  some  cases  settlors  wish  that  in  certain  contingencies  the  desti- 
nation they  primarily  give  to  the  settled  property  may  be  wholly  or 
partially  superseded  in  favour  of  another  which  they  desire  to  give  to  it 
on  the  occurrence  of  one  of  those  contingencies.  Clauses  prepared  to 
effect  such  wishes  all  answer  the  description  of  shifting  clauses,  but  one 
class  of  them  are  known  as  Names  and  Arms  Clauses,  and  the  term 
Shifting  Clauses  is  usually  reserved  for  the  rest. 

The  event  on  the  occurrence  of  which  a  Name  and  Arms  Clause  is 
intended  to  operate  is  that  of  the  settled  estate  vesting  by  purchase, 
under  the  limitations  of  the  settlement,  in  some  person  who  does  not 
bear  the  name  and  arms  of  the  settlor  for  an  estate  in  possession  for 
life,  or  in  tail-male,  or  in  tail.  The  primary  object  of  a  settlement  may 
be  such  a  person ;  as  it  is  where  an  owner  settles  his  estate  on  his  sister's 
son  for  life,  with  remainders  over.  That  nephew  in  most  cases  would 
not  use  the  name  or  be  entitled  to  bear  the  arms  of  the  settlor.  The 
event  may  also  happen  where  limitations  in  tail,  or  limitations  for  life 
followed  by  remainders  in  tail,  are  given  to  females.  A  Name  and 
Arms  Clause  begins  by  declaring  that  every  person  intended  to  be 
affected  by  it — e.g.  every  person  who,  by  virtue  of  the  settlement,  shall 
become  entitled  as  tenant  for  life,  or  as  tenant  in  tail-male,  or  tail 
general,  to  the  possession  of  the  settled  property,  and  shall  not  then  use 
the  surname  and  be  entitled  to  bear  the  arms  the  settlor  wishes  to  be 
used  and  borne,  and  every  person  whom  any  female  becoming  so  entitled 
shall  marry — shall,  within  a  specified  time  after  becoming  so  entitled, 
or  in  the  case  of  an  infant  after  his  coming  of  age,  or  in  the  case  of 
a  husband  after  his  marriage,  endeavour  to  obtain  a  licence  from  the 


SETTLEMENTS;  SETTLEMENTS  OF  PKOPEETY         313 

Crown,  to  adopt  and  bear  the  prescribed  name  and  arms,  and  shall,  after 
obtaining  the  same  licence,  always  use  and  bear  the  name  and  arms. 
Next,  after  describing  the  possible  cases  of  disobedience,  the  clause 
proceeds  to  declare  that  in  every  such  case  the  estate  limited  to  the 
person  who,  or  whose  husband,  shall  so  disobey,  shall  determine,  and 
that  the  land  shall  devolve  in  the  way  in  which  the  settlor  may  wish 
that  in  the  supposed  event  it  shall  devolve.  In  most  cases  the  sub- 
stituted destination  is  that  which  the  settlement  would  have  given  to 
the  land  if  the  forfeited  estate  had  then  expired  by  the  death,  or  the 
death  and  failure  of  issue,  of  the  tenant.  This  limitation  is  commonly 
qualified  by  a  proviso,  determining,  if  the  next  estate  in  order  of 
limitation  is  only  a  contingent  one,  the  destination  of  the  rents  which 
shall  accrue  before  the  contingent  estate  vests  or  fails,  and  some 
subsequent  remainderman  becomes  entitled  in  possession. 

Shifting  clauses  of  like  character  have  been  employed  to  secure 
compliance  with  a  settlor's  expressed  wish  that  the  person  he  proposed 
to  benefit  should  profess  adherence  to  a  specified  form  of  religion,  or  live 
at  a  specified  place. 

The  insertion  of  a  Name  and  Arms  Clause  in  a  settlement  made 
under  the  Infants  Settlement  Act  has  been  approved  by  the  Court 
{In  re  Williams,  1860,  6  Jur.  N.  S.  1064),  but  not  a  condition  against 
the  profession  of  the  Eoman  Catholic  religion  {ibid.),  and  since  1882  a 
clause  intended  to  secure  residence  at  a  particular  place  has  been  void, 
in  so  far  as  it  may  tend  or  operate  to  prevent  the  tenant  for  life  from 
exercising,  or  to  induce  him  to  abstain  from  exercising,  or  to  put  him 
into  a  position  inconsistent  with  his  exercising,  any  power  under  the 
Settled  Land  Act,  1882,  s.  51  (2). 

The  term  "  Shifting  Clause,"  though  applicable  to  any  of  those  by 
which  settlors  seek  to  secure  compliance  by  their  beneficiaries  with 
some  injunction  they  give  to  them,  is  more  commonly  used  to  denote 
a  provision  for  a  case  in  which  a  settlor  desires  to  give  the  property  a 
particular  destination  only  if  some  specified  event  do  not  or  until  it  does 
happen.  The  event  contemplated  is  in  most  cases  the  devolution  on  the 
beneficiaries  under  the  particular  settlement  of  another  estate  settled  on 
a  different,  generally  an  elder,  branch  of  the  family ;  in  which  event  the 
settlor  wishes  the  estate  he  settles  to  shift  to  another,  and  generally  a 
still  younger,  branch  of  the  same  family.  There  is  great  difficulty  in  so 
framing  such  clauses  as  to  give  effect  to  the  settlor's  wishes,  or  to  what 
would  be  his  wishes  in  the  many  unforeseen  events  which  may  possibly 
occur.  With  reference  to  every  variety  of  shifting  clause,  Mr.  Butler 
remarked  that  "  so  many  circumstances  deserve  minute  attention  and 
accurate  expression,  as  to  render  it  a  clause  of  singular  nicety  "  (Co. 
Litt.  327a,  note  283). 

Voluntary  Settlements. 

A  settlement  for  which  the  settlor  obtains,  neither  for  himself  nor 
another  person,  a  marriage  or  any  other  valuable  consideration,  is  called 
voluntary.  Such  settlements  are  gifts,  and  may  be  made  for  the  benefit 
chietiy  of  either  the  donees  or  the  donors.  In  each  case  the  settlor  may 
reserve  interests  to  himself,  as  well  as  give  some  to  others;  but  in 
settlements  of  the  one  kind,  gift  is  his  chief  purpose ;  in  the  other,  it  is 
self-protection.  The  former  needs  no  explanation.  The  motive  for  the 
latter  is  a  consciousness  in  the  settlor  of  some  weakness  of  character,  or 


314         SETTLEI^IENTS ;  SETTLEMENTS  OF  PEOPEETY 

of  some  circumstances  in  consequence  of  which  he  may  lose  the  property 
he  proposes  to  settle.  Settlements  of  both  classes — praiseworthy  or 
prudent,  as  they  may  be  respectively — the  Court  scrutinises  with  some- 
thing like  suspicion.  If  impeached,  the  burden  of  proving  that  the 
settlor  made  the  settlement  with  needful  counsel,  intelligence,  and 
freewill  lies  on  those  who  claim  under  it.  The  absence  of  a  power  of 
revocation  is  a  circumstance  that  needs  explanation.  Such  settlements 
must  convey  the  legal  property  in,  or  declare  a  trust  of  the  subject- 
matter  ;  for  specific  performance  of  a  contract  or  covenant  to  make  such 
a  settlement  will  not  be  decreed  {Milroy  v.  Lord,  1862,  4  De  G.,  F.  &  J. 
264;  45  E.  E.  1185).  Equity  will  not  complete  imperfect  gifts.  A 
voluntary  covenant,  however,  may  give  a  right  of  action  for  damages 
(see  cases  cited  in  Vaizey,  Settlements,  p.  101). 

Post-nuptial  Settlements. 

These  settlements  are  usually  voluntary  settlements.  They  resemble 
marriage  settlements  in  having  the  spouse  and  children  of  the  settlor  or 
the  one  or  the  other  for  the  objects  or  object  of  the  settlement,  and  they 
differ  from  marriage  settlements  in  lacking  the  support  of  the  considera- 
tion of  marriage.  They  are,  however,  supported  by  what  is  called  a 
"  good,"  as  distinguished  from  a  "  valuable,"  consideration,  and  less  than 
other  voluntary  settlements  excite  suspicion.  A  good  consideration, 
Blackstone  wrote,  is  such  as  that  of  blood  or  of  natural  love  and 
affection,  when  a  man  grants  an  estate  to  a  near  relation,  being 
founded  on  motives  of  generosity,  prudence,  and  natural  duty;  a 
valuable  consideration  is  such  as  money,  marriage,  or  the  like,  which 
the  law  esteems  an  equivalent  given  for  the  grant,  and  is  therefore 
founded  on  motives  of  justice  (2  Com.,  297 ;  Currie  v.  Misa,  1875, 
L.  E.  10  Ex.  153,  162). 

Sepakation  Deeds. 

The  occurrence  of  unhappy  differences  between  a  husband  and  a 
wife  is  usually  referred  to  in  a  Separation  Deed  as  the  cause  of  their 
agreement  to  live  separately,  and  it  constitutes  the  occasion  on  which 
a  settlement  of  this  description  is  made.  The  deed  usually  contains 
covenants  by  the  husband  with  a  trustee  for  the  wife  to  permit  her 
to  live  separately,  and,  in  cases  where  that  is  still  necessary,  to  enjoy 
property  as  if  she  were  sole — if  she  die  testate,  to  permit  probate  of  her 
■will — or,  if  she  die  intestate,  to  permit  administration  to  her  property 
to  be  taken  by  her  next-of-kin  in  exclusion  of  his  marital  right.  Usually 
provisions  for  her  separate  maintenance  are  inserted,  and  it  is  not 
usual  to  qualify  them  by  a  dum  casta  clause  {Hart  v.  Hart,  1881, 
18  Ch.  D.  670).  On  the  other  hand,  the  trustee  covenants  that  the 
wife  shall  not  molest  the  husband  or  endeavour  to  compel  him  to 
cohabit  with  her,  and  that  the  trustee  will  indemnify  the  husband 
against  her  debts.  Stipulations  concerning  the  custody  of  children  of 
the  marriage  are  often  inserted. 

The  occasion  of  the  settlement  must  be  a  separation  which  has 
already  been,  or  will  immediately  be,  accomplished.  An  agreement 
for  future  separation  is  void  as  against  the  policy  of  the  law.  A  return 
to  cohabitation  usually  puts  an  end  to  the  operation  of  the  deed 
( Westmeath  v.  Salisbury,  1831,  5  Bli.  N.  S.  339 ;  but  see  In  re  Ahdy, 
[1895]  1  Ch.  455 ;  Bowell  v.  Rowell,  [1900]  1  Q.  B.  9). 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY         315 

Settlements  on  Divorce  and  Judicial  Separation. 

The  last  class  of  occasions  on  which  settlements  are  made  are  the 
judicial  separation  and  divorce  of  married  persons.  The  settlements 
made  in  such  events  derive  their  authority,  not  so  much  from  the 
settlor's  acts  in  making  them,  as  from  the  Orders  of  the  Court  issued 
in  exercise  of  statute-given  powers  {In  re  Stephenson,  [1897]  1  Q.  B.  638, 
641),  The  Ecclesiastical  Courts,  indeed,  did  in  cases  of  divorce  d^  mensd 
et  tlioro,  and  the  Probate  Division  does  in  cases  of  judicial  separation, 
exercise  an  older  jurisdiction  to  order  payment  of  alimony  by  a  husband 
to  a  wife,  both  pendente  lite  and  permanently.  Moreover,  in  Private 
Divorce  Acts,  provisions  for  the  wife  out  of  the  husband's  estates  were 
customary,  but  for  all  other  provisions  to  be  made  on  the  occasions  now 
under  consideration,  the  only  authorities  are  sections  in  the  Matrimonial 
Causes  Act,  1857,  and  in  the  statutes  amending  it.  The  first  of  these 
sections  contained  in  the  original  Act  has  enabled  the  Court  to  do  on 
a  decree  for  dissolution  of  a  marriage  what  the  House  of  Lords  had 
done  in  passing  Divorce  Bills.  The  Court  may,  if  it  thinks  fit,  order 
the  husband,  to  the  satisfaction  of  the  Court,  to  secure  to  the  wife  such 
a  gross  sum  of  money,  or  such  an  annual  sum  of  money,  for  any  term 
not  exceeding  her  own  life,  as,  having  regard  to  her  fortune  (if  any), 
to  the  ability  of  the  husband,  and  to  the  conduct  of  the  parties,  it  shall 
deem  reasonable,  and  for  that  purpose  may  refer  it  to  any  one  of  the 
conveyancing  counsel  of  the  Court  to  settle  and  approve  of  a  proper 
deed  or  instrument  to  be  executed  by  all  necessary  parties  (20  &  21 
Vict.  c.  85,  8.  32).  Under  a  later  Act  the  Court  may  order  the  pay- 
ment of  monthly  or  weekly  sums  for  the  wife's  maintenance,  and,  if  the 
husband  becomes  unable  to  pay,  the  Court  may  modify  or  temporarily 
suspend  the  order  and  again  revive  it  (29  Vict.  c.  32,  s.  1).  The  original 
Act  also  enables  the  Court,  where  damages  are  recovered  by  a  husband 
against  a  co-respondent,  whether  in  an  action  for  dissolution  of  marriage 
or  for  judicial  separation,  to  direct  in  what  manner  such  damages  shall 
be  paid  or  applied,  and  to  direct  that  the  whole  or  any  part  thereof 
shall  be  settled  for  the  benefit  of  the  children  (if  any)  of  the  marriage, 
or  as  a  provision  for  the  maintenance  of  the  wife  (20  &  21  Vict.  c.  85, 
s.  33).  Again,  upon  pronouncing  sentence  of  divorce  or  judicial  separa- 
tion for  adultery  of  a  wife  entitled  to  any  property  in  possession  or 
reversion,  the  Court  may,  if  it  shall  think  proper,  order  such  settlement 
as  it  shall  think  reasonable  of  such  property  or  any  part  thereof,  for  the 
benefit  of  the  innocent  party  and  the  children,  or  either  or  any  of  them 
(s.  45).  A  later  Act  made  such  a  settlement  valid  "  notwithstanding 
the  existence  of  the  disability  of  coverture  at  the  time  of  the  execution 
thereof  "  (23  &  24  Vict.  c.  144,  s.  6),  and  authorised  the  Court,  after  a 
final  decree  of  nullity  or  dissolution  of  marriage,  to  inquire  into  the 
existence  of  ante-nuptial  or  post-nuptial  settlements  made  on  the 
parties  whose  marriage  is  the  subject  of  the  decree,  and  to  make  such 
orders  as  it  should  think  fit  with  reference  to  the  application  of  the 
whole  or  a  portion  of  the  property  settled,  either  for  the  benefit  of 
the  children  of  the  marriage  or  for  that  of  their  respective  parents 
(s.  5).  The  Court  now  can  exercise  this  power  though  there  is  not 
a  child  (41  &  42  Vict.  c.  19,  s.  3).  Last,  in  cases  of  applications  for 
restitution  of  conjugal  rights,  when  made  by  the  wife,  the  Court  may 
compel  compliance  with  its  decree  by  ordering  the  respondent  to  make 
to  the  petitioner  periodical  payments,  and  to  secure  the  same  by  a 


316         SETTLEMENTS;  SETTLEMENTS  OF  PEOPEETY 

proper  instrument  to  be  approved  by  a  conveyancing  counsel  of  the 
Court  and  to  be  executed  by  the  necessary  parties ;  where  the  husband 
is  the  applicant  and  the  wife  is  entitled  to  any  property  in  possession 
or  reversion,  or  is  in  the  receipt  of  any  profits  of  trade  or  earnings,  the 
Court  may,  if  it  shall  think  fit,  order  a  settlement  to  be  made,  to  its 
satisfaction,  of  such  property  or  any  part  thereof,  for  the  benefit  of  the 
petitioner  and  of  the  children,  or  either  or  any  of  them,  or  may  order 
part  of  such  profits  or  earnings  to  be  periodically  paid  by  the  respondent 
to  the  petitioner  for  his  own  benefit,  or  to  the  petitioner  or  any  other 
person  for  the  benefit  of  the  children  of  the  marriage,  or  either  or  any 
of  them  (47  &  48  Vict.  c.  68,  ss.  2,  3 ;  Brown  and  Powles's  Divorce 
Practice,  7th  ed.,  1905,  pp.  160-175).  Moreover,  Courts  of  summary 
jurisdiction  may,  after  the  conviction  of  husbands  of  certain  assaults 
on  their  wives,  or  after  certain  acts  of  desertion,  cruelty,  and  neglect, 
and  among  other  remedies,  order  payment  by  the  husband  of  weekly 
sums  not  exceeding  £2,  and  vary  and  discharge  such  orders  (58  &  59 
Vict.  c.  39). 

Neither  protection  orders  made  for  the  benefit  of  deserted  wives 
(20  &  21  Vict.  c.  85,  s.  21 ;  21  &  22  Vict.  c.  108,  ss.  6,  8 ;  49  &  50  Vict, 
c.  52)  nor  the  several  Married  Women's  Property  Acts  strictly  relate  to 
settlements.  They  only  abridge  the  former  rights  of  husbands  to  the 
property  of  their  wives ;  but  the  19  th  section  of  the  Married  Women's 
Property  Act,  1882,  expressly  protects  settlements  and  agreements  for 
settlements  made  or  to  be  made  before  or  after  marriage  respecting 
property  from  being  interfered  with  or  affected  by  the  Act  (see  above, 
p.  292). 

The  Divorce  Acts  also  authorise  the  Court  in  proceedings  for  judicial 
separation,  decrees  of  nullity,  and  dissolution  to  make  both  interim  and 
permanent  provisions  with  respect  to  the  custody,  maintenance,  and 
education  of  the  children  (20  &  21  Vict.  c.  85,  s.  35;  22  &  23  Vict, 
c.  61,  s.  5). 

Observations  on  the  Divorce  Division's  Exercise  of  the  above-described 
Powers. — In  the  exercise  of  the  powers  given  by  statute  to  the  Divorce 
Division,  the  Court  has  recognised  the  rule  that  it  should  consider  "  the 
wife's  fortune,  the  ability  of  the  husband,  and  the  conduct  of  the  parties," 
which  was  by  the  first  Act  prescribed  for  its  guidance  in  ordering  per- 
manent maintenance  (20  &  21  Vict.  c.  85,  s.  32),  as  also  intended  to  guide 
it,  not  only  in  ordering  periodical  payments  under  the  amending  enact- 
ment (29  Vict.  c.  32,  s.  1 ;  Bishop  v.  Bishop,  [1897]  P.  138, 164),  but  also 
in  exercising  its  power  to  vary  settlements  (22  &  23  Vict.  c.  61,  s.  5  ; 
Chetwynd  v.  Chetioynd,  1865,  L.  E.  1  P.  &  D.  39,  45 ;  Constantinidi  v. 
Constantinidi,  [1905]  P.  253).  Soon  after  the  passing  of  the  first  Act, 
Sir  C.  Cresswell,  J.O.,  adverting  to  the  practice  of  the  House  of  Lords 
in  passing  Divorce  Bills,  thought  that  an  innocent  wife  having  elected 
to  obtain  a  dissolution  of  the  marriage,  was  not  entitled  to  a  maintenance 
dum  casta  {Fisher  v.  Fisher,  1861,  2  Sw.  &  Tr.  410) ;  but  in  a  later  case, 
Lord  Penzance,  then  Sir  J.  P.  Wilde,  P.,  held  that  such  an  election  did 
not  disentitle  an  innocent  wife  to  such  a  provision  as  she  would  other- 
wise be  entitled  to  {Sidney  v.  Sidney,  1865,  34  L.  J.  P.  M.  &  A.  122). 
That  provision,  following  the  rule  of  the  Ecclesiastical  Courts  with 
reference  as  to  alimony,  the  learned  judge  fixed  at  about  one-third  of 
the  joint  income  {ibid.).  When  the  wife  is  the  offender,  the  Court 
considers  the  nature  and  extent  of  the  pecuniary  change  wrought  by 
her  criminality,  and  thinks  it  just  that  the  husband  shall  not  be  wholly 


SETTLEMENTS;  SETTLEMENTS  OF  PEOPERTY         317 

deprived  of  means  to  the  scale  of  which  he  may  have  learned  to  accom- 
modate his  mode  of  life,  and  that  the  wife  should  not  be  permitted  to 
bear  off  to  an  adulterer  funds  intended  at  the  time  of  the  marriage  for 
the  use  of  the  husband  and  wife  {March  v.  March,  1867,  L.  R.  1  P.  &  D. 
440).  The  circumstances  in  each  case  must  be  considered,  and  one-third 
may  be  too  much.  What  would  be  an  adequate  jointure  has  been 
referred  to  as  a  test  {Kettlewell  v.  Kettlewcll,  [1898]  P.  138). 

The  above-mentioned  gift  to  the  Court  of  power  to  discharge,  modify, 
or  suspend  maintenance  orders  has  enabled  it  to  make  them  against 
husbands  in  the  enjoyment  of  precarious  incomes,  or  such  as  are  wholly 
dependent  on  the  generosity  of  friends  {Hanhv/ry  v.  Hanlury,  [1895] 
A.  C.  417;  Bonsor  v.  Bonsor,  [1897]  P.  77). 

Dum  casta  vixerit  Clause. — Income  provided  for  a  wife  out  of  her 
husband's  property  is  made  to  continue  dum  sola  et  casta  {Sidney  v. 
Sidney,  1865,  34  L.  J.  P.  M.  &  A.  122) ;  but  when  derived  from  her  own 
property,  and  her  conduct  is  irreproachable,  the  restricting  clause  is 
omitted  {Gladstone  v.  Gladstone,  1876,  1  P.  &  D.  442).  Moreover,  sola 
may  be  proper  without  casta,  for  though  it  is  unjust  to  make  an  allow- 
ance cease  on  marriage  and  not  on  illicit  intercourse,  it  is  an  insult  to  a 
woman  of  spotless  character  to  provide  against  the  contingency  of  such 
a  provision  becoming  necessary  {Wood  v.  Wood,  [1891]  P.  272,  276;  see 
also  Smith  v.  Smith,  [1898]  P.  29 ;  Squire  v.  Sqicire,  [1905]  P.  4).  In  a 
case  of  nullity  the  Court  has  ordered  the  woman's  settled  property  to  be 
reconveyed  to  her  {A.  otherwise  M.  v.  M.,  1884,  10  P.  D.  178).  Both 
dispositive  powers  and  powers  to  appoint  new  trustees  have  been 
extinguished  or  qualified  {Bosvile  v.  Bosvile,  1888,  13  P.  D.  76; 
Oppenheim  v.  Oppenheim,  1884,  9  P.  D.  60). 

Duties  of  Adviseks  of  Settlors. 

The  various  occasions  on  which  settlements  are  made  suggest  the 
end  to  be  attained  by  them  respectively,  and  the  duties  of  those  con- 
cerned in  their  preparation  respectively.  The  proper  performance  by 
such  persons  of  those  duties  is  sometimes  important,  not  only  to  their 
own  justification,  but  also  to  the  legal  efficacy  of  the  instruments  they 
have  concurred  in  creating. 

Upon  marriage — the  first  and  chief  occasion  of  making  a  settlement — 
all  that  is  thereby  suggested  is  a  series  of  provisions  beginning  to  operate 
at  the  solemnisation  of  the  marriage  for  the  benefit  of  the  spouses  or  of 
one  of  them,  and  that  of  possible  issue  of  the  marriage.  The  occasion 
does  not  suggest  any  change  in  what,  if  the  settlement  had  not  been 
made,  would  have  been  the  course  of  devolution  of  the  property,  after 
or  in  the  event  of  determination  or  failure  of  those  provisions. 

Settlements  on  marriage  are  transactions  between  persons,  of  whom 
both  are  not  unlikely  to  be,  and  the  intended  wife  in  the  greater  number 
of  cases  is,  wholly  unversed  in  such  matters  as  the  future  destination  of 
property,  its  management,  and  the  conduct  of  business.  In  most  cases 
the  settlement  is  made  for  the  protection  of  the  intended  wife,  and  in 
most  she  needs  counsel.  Where  in  such  a  case  a  girl  trusted  her  father, 
and  used  his  advice  and  agency  in  negotiation  and  in  the  instruction  of 
a  solicitor  for  her,  Lords  Justices  Cotton  and  Lopes  thought  that  she  did 
rightly,  and  they  differed  from  Kekewich,  J.,  who  appeared  to  be  of 
opinion  that  a  solicitor  should  be  instructed  to  guard,  independently  of 
the  father,  the  interests  of  the  daughter  and  intended  wife  {Tucker  v. 


318         SETTLEMENTS;  SETTLEMENTS  OF  PROPEETY 

Bennet,  1887,  34  Ch.  D.  754 ;  1887,  38  ibid.  1).  Where  a  man  about  to 
marry  undertook,  as  agent  for  his  intended  wife,  to  have  a  settlement  of 
her  property  prepared,  he  was  held  to  have  been  bound  to  have  such  a 
contract  prepared  as  the  Court  would  sanction  {Corley  v.  Lord  Stafford, 
1857,  1  De  G.  &  J.  238 ;  44  E.  E.  714 ;  Clark  v.  Girdwood,  1877, 
7  Ch.  D.  9). 

Usually  the  intended  wife's  solicitor  prepares  the  deeds  at  the 
intended  husband's  cost  (Helps  v.  Clayton,  1864,  17  C.  B.  N.  S.  553; 
32  Sol.  J.  84). 

It  often  happens,  indeed,  that  in  a  settlement  made  on  marriage,  pro- 
visions for  other  purposes  than  those  above  mentioned  are  inserted,  but 
their  insertion  is  suggested  by  other  circumstances  than  the  marriage. 
The  settlor  may  have  children  by  a  former  marriage  for  whom  he  wishes 
to  provide,  or  it  may  be  prudent  to  reserve  power  to  provide  for  a  subse- 
quent marriage.  Moreover,  property  is  often  settled  on  behalf  of  a 
spouse  by  another  person,  and  it  may  be  a  term  of  the  gift  that  some 
interest  to  the  donor,  or  to  someone  else,  shall  be  reserved  or  created 
out  of  the  property  given,  or  the  donor  may  choose  to  limit  the  gift  to 
parties  to  the  intended  marriage,  and  issue  of  that  marriage  and,  subject 
to  that  gift,  to  impress  on  the  property  an  ultimate  trust  for  some  other 
person  or  persons  than  the  spouse  on  whose  behalf  he  makes  the  settle- 
ment. Where,  however,  in  contemplation  of  marriage  either  of  the 
intended  spouses  settles  his  or  her  own  property,  the  occasion  justifies 
only  provisions  for  the  intended  husband  and  wife  and  their  issue. 
Subject  to  that  and  in  the  case  of  a  girl  to  the  usual  protection  of  her 
from  an  abuse  of  marital  importunity,  the  settlor's  original  ownership 
and  power  of  disposition,  should  be  jealously  guarded.  Solicitors  and 
counsel  who  are  often  instructed  by  a  girl's  friends  must  recollect  that 
it  is  her  interest  only  which  they  are  bound  to  protect. 

When  a  tenant  in  tail  in  remainder  on  coming  of  age  joins  his  father 
in  barring  the  old  entail  and  resettling  the  estate,  the  resettlement  or 
family  settlement  so  made  is  a  matter  for  bargain  between  the  father 
and  son.  In  its  simplest  form  the  father  provides  for  his  son  an  income 
out  of  the  estate  during  their  joint  lives,  and  the  son  secures,  in  the 
event  of  the  failure  of  his  own  issue,  the  devolution  of  the  property  on 
the  younger  branches  of  his  father's  family.  Often  both  parties  need 
other  benefits  for  themselves  respectively,  each  at  the  expense  of  the 
other.  In  these  cases  it  is  prudent  and  often  indispensable  that  each 
party  should  be  advised  by  a  separate  solicitor.  If  he  be  not,  there  is 
a  danger  of  the  transaction  being  set  aside  on  the  ground  that  one  party, 
usually  the  son,  did  not  understand  the  bargain,  and  did  not  mean  to  do 
what  the  settlement  expresses.  The  Court,  indeed,  approaches  the  con- 
sideration of  a  family  arrangement  with  a  favourable  prejudice,  subject 
to  its  being  satisfied  that  the  parties  were  so  personally  competent  to 
judge,  and  so  efficiently  advised  as  that  it  ought  to  be  inferred  that 
they  understood  and  intended  to  do  what  they  did. 

Those  who  are  required  to  advise  persons  proposing  to  make  volun- 
tary settlements,  either  chiefly  with  the  purpose  of  benefiting  others,  or 
chiefly  in  order  to  guard  against  their  own  weakness,  need  to  take  special 
precautions,  first  in  protection  of  their  clients,  and  secondly  in  order  to 
secure  the  proposed  settlement  against  the  imputations  to  which  volun- 
tary settlements  are  primarily  liable.  Those  precautions  are  to  satisfy 
themselves  that  their  clients  are  of  competent  mental  power — that  they 
are  free  from  any  improper  influence — that  they  understand  what  is 


SETTLEMENTS,  ETC.— PKECEDENTS  319 

proposed  to  be  done,  and  that  they  wish  to  do  it.  In  particular,  the 
difference  between  a  revocable  and  an  irrevocable  act  should  be  made 
clear  to  every  such  settlor,  and  a  power  of  revocation  should  be  inserted 
unless  the  maker  of  the  instrument — understanding  the  difference  and 
exercising  freely  his  own  choice — wishes  the  settlement  to  be  irrevoc- 
able. In  order  to  protect  the  settlement  so  far  as  may  be  against 
subsequent  attack  on  the  grounds  of  incompetence  or  misapprehension 
in  the  settlor,  or  of  his  having  acted  under  any  undue  influence,  the 
solicitor  should  make  and  keep  written  memoranda  of  the  means  he 
used  to  satisfy  himself,  and  of  the  acts  by  the  settlor  which  satisfied 
him  that  none  of  the  above-mentioned  reasons  for  impugning  the 
validity  of  the  settlement  existed. 


Stamps. 

An  instrument  whereby  any  definite  and  certain  principal  sum  of 
money,  or  any  definite  and  certain  amount  of  stock,  or  any  security  is 
settled  or  agreed  to  be  settled  must  be  impressed  with  an  ad  valorem 
stamp  of  five  shillings  per  cent.  (Stamp  Act,  1891,  Sched.  Settlement). 
On  a  settlement  of  any  other  subject-matter  the  stamp  is  a  ten-shilling 
one  (see  Stamps). 

[Authorities. — Peachy  on  Settlements,  1860;  Waley  in  vol.  iii.  of 
Davidson's  Convey anciTig,  3rd  ed.,  1873 ;  Vaizey  on  Settlements,  1887.] 


PRECEDENTS. 


I.  SETTLEMENT  on  Marriage  of  a  Sum  of  Stock  helonging  to 
the  Wife,  the  Income  to  he  "paid  to  the  Wife  without  Power  of 
Anticipation  for  her  Life  ;  and  after  her  Death  to  the  Husband  for 
his  Life.  Trusts  for  Issue,  and  Usual  Clauses.  Covenant  to  Settle 
After-acquired  Property.  Power  for  Wife,  upon  a  Future  Marriage,- 
to  Withdraw  Funds  from  Settlement.     Trustee  Clauses. 

THIS  INDENTURE,  made  the  day  of 

Parties.       19     ^  BETWEEN  [intended  husband],  of,  &c.,  of  the  first  part;  [intended 

wife],  of,  &c.,  spinster,  of  the  second  part ;  and  [trustee],  of,  &c., 

^/^r'^d  d  [^''"^^^^]>  0^  ^°-»  *^"^  [trustee],  of,  &c.,  of  the  third  part :  Whereas 

marriage;    a  marriage  is  intended  shortly  to  be  solemnised  between  the  said 

ofstwk^to    [husband]  and  [w/«];   And  whereas,  pursuant  to  an  agreement 

trustees;      made  upon  the  treaty  for  the  said  intended  marriage,  the  sum  of 

£  2J  per  cent.  Consolidated  Stock,  belonging  to  the  said  [wife], 

has  been  transferred  into  the  names  of  the  said  [trustees]  in  the  books 

of  the  Governor  and  Company  of  the  Bank  of  England,  to  be  held 

by  them  in  trust  for  the  said  wife  until  the  said  intended  marriage, 

and  thereafter  upon  the  trusts,  and  with  and  subject  to  the  powers 

and  provisions  hereinafter  declared  of  and  concerning  the  same : 

m^ir^      And  whereas  upon  the  treaty  for  the  said  intended  marriage  it 

was  agreed  that  these  presents  should  contain  such  covenant  or 

agreement  as  is  hereinafter  contained  for  settling  any  property  real 


320  SETTLEMENTS,  ETC.— PEECEDENTS 

for  settle-  or  personal,  except  as  hereinafter  mentioned,  of  or  to  which  she  the 
wffe'safter-  said  [wife]  may  be  or  become  possessed  or  entitled  at  the  time  of  the 
property,  said  intended  marriage,  or  during  the  now  intended  coverture : 
Testatum.  NOW  THIS  INDENTURE  WITNESSETH,  that  in  pursuance 
Declaration  of  the  said  agreement,  and  in  consideration  of  the  said  intended 
stocT?  °  marriage,  it  is  hereby  agreed  and  declared  that  the  said  [trustees], 
their  executors,  administrators,  and  assigns,  shall  stand  possessed  of 
the  said  sum  of  <£  2^  Consolidated  Stock  hereinbefore  recited 

to  have  been  transferred  to  them,  In  trust  for  the  said  [wife]  until 
the  solemnisation  of  the  said  intended  marriage ;  And  thereafter 
trust  for  Upon  trust  that  the  said  [trustees],  or  the  survivors  or  survivor  of 
'  them,  or  the  executors  or  administrators  of  such  survivor,  or  other 
the  trustees  or  trustee  for  the  time  being  of  these  presents  (herein- 
after called  **  the  said  trustees  or  trustee  "),  shall  either  allow  the 
said  sum  of  £  2|  Consolidated  Stock  to  remain  in  its  present 

state  of  investment  so  long  as  the  said  trustees  or  trustee  may  think 
fit,  or  shall,  at  any  time  or  times,  with  the  consent  in  writing  of  the 
said  [husband]  and  [wife]  during  their  joint  lives,  and  of  the  survivor 
of  them  during  his  or  her  life,  and  after  the  death  of  such  survivor, 
at  the  discretion  of  the  said  trustees  or  trustee,  sell  the  same  sum 
investment  of  stock,  or  any  part  or  parts  thereof,  and  invest  ^  the  proceeds  of 
re«rrictedto  s^^h  Sale  Or  sales  in  the  names  or  name  of  them  or  him,  the  said 
?^*^g^/y     trustees  or  trustee,  in  the  purchase  of,  or  at  interest  upon  any 
ments;        stocks,   funds,    or    securities,  which   may   for   the   time   being  be 
authorised  by  any  statute  or  order  of  Court  for  the  investment  of 
trust  funds  or  of  cash  under  the  control  of  the  Chancery  Division  of 
His  Majesty's  High  Court  of  Justice,  but  not  in  any  other  stocks, 
power  to      funds,  or  securities  :  And  may  from  time  to  time,  with  such  consent 
m^tsT^*^  or  at  such  discretion  as  aforesaid,  vary,  alter,  or  transpose  all  or  any 
of  the  said  stocks,  funds,  and  securities,  into  or  for  other  stocks, 
trust  of       funds,  or  securities  of  the  same  or  a  like  nature;  And  shall  during 
^fe'during  the  joint  lives  of  the  said  [husband]  and  [wi/e],  pay  the  income  of  the 
of  hereei?    Said  sum  of  £  2|  per  cent.  Consolidated  Stock,  and  of  the 

husband      investments  for  the  time  being  representing  the  same  (which  sum  of 
without       stock  and  investments  are  hereinafter  called  "  the  said  trust  fund  "), 

power  01  ' ' 

anticipar      unto  the  Said  [wife]  for  her  separate  use,  but  so  that  she  shall  have 

trust  for      "O  power  to  anticipate  the  same ;  And  from  and  after  the  death  of 

survivor      g^jgjj  Qj^g  ^f  them  the  said  [husband]  and  [wife]  as  shall  first  die,  shall 

pay  the  income  of  the  said  trust  fund  to  the  survivor  of  them,  and 

his  or  her  assigns,  during  his  or  her  life,  but  so  that  the  said  [wife] 

shall  not  during  the  said  intended  coverture  have  power  to  dispose 

of  or  charge  such  reversionary  life  interest  by  way  of  anticipation  ; 

remainder    And  from  and  after  the  death  of  the  survivor  of  them  the  said 

husband  ^  [husband]  and  [wife]  shall  stand  possessed  of  the  said  trust  fund  and 

shair'^^      the  income  thereof.  In  trust  for  all  or  such  one  or  more  exclusively 

appoint       Qf  the  others  or  other  of  the  children  or  remoter  issue  of  the  said 

(Jtdl  form); 

intended  marriage,  [such  remoter  issue  to  be  born  and  take  vested 
interests  within  twenty-one  years  from  the  death  of  the  survivor  of 

1  For  more  extended  range  of  investments,  see  Precedent  II.,  infra. 


SETTLEMENTS,  ETC.— PEECEDENTS 


321 


remainder 
as  survivor 
shall 
appoint : 


trost,  in 
defaiilt  of 
appoint- 
ment, for 
children 
equally  at 
twenty-one 
or  marriage 


hotchpot 
clause; 


power  of 
advance- 
ment; 


them  the  said  [husband]  and  [imfe]  i],  at  such  age  or  time  or  respec- 
tive ages  or  times,  and  if  more  than  one  in  such  shares,  and  with 
such  future,  executory,  or  other  trusts  for  the  benefit  of  the  said 
issue,  or  some  or  one  of  them,  and  with  such  provisions  for  the 
maintenance,  education,  advancement,  and  benefit  of  such  children 
or  issue  or  some  or  one  of  them,  either  after  the  death  of  the  said 
[husband]  and  [wife],  or  during  their  joint  lives,  or  the  life  of  the 
survivor  of  them,  with  their,  his,  or  her  consent  in  writing,  at  the 
discretion  of  the  said  trustees,  or  trustee,  or  of  any  other  person  or 
persons,  and  subject  to  such  restrictions,  conditions,  and  provisions, 
and  generally  in  such  manner  in  all  respects  as  the  said  [husband]  and 
[wife]  shall  by  any  deed  or  deeds,  revocable  or  irrevocable,  jointly 
appoint ;  And  in  default  of  such  joint  appointment,  and  so  far  as 
no  such  appointment  shall  extend,  then  as  the  survivor  of  them  the 
said  [husband]  and  [wife]  shall  in  like  manner,  or  by  will  or  codicil 
appoint;  And  in  default  of  and  so  far  as  no  appointment  under 
either  of  the  powers  hereinbefore  contained  shall  extend,  In  trust 
for  all  the  children  or  any  the  child  of  the  said  intended  marriage, 
who  being  sons  or  a  son  shall  attain  the  age  of  twenty-one  years, 
;or  being  daughters  or  a  daughter  shall  attain  that  age  or  marry 
[with  the  consent  of  his  or  her  parents  or  parent,  or  guardians 
or  guardian],  and  if  more  than  one  in  equal  shares ;  Provided 
ALWAYS  that  no  child  who  or  whose  issue  shall  take  any  share  or 
shares,  interest  or  interests,  in  the  said  trust  fund  by  virtue  of  any 
appointment  or  appointments  made  under  either  of  the  powers 
lastly  hereinbefore  contained  shall,  in  the  absence  of  an  express 
declaration  to  the  contrary  in  any  such   appointment,  take  any 
share   or  shares,   interest  or  interests,   in   the   unappointed   part 
of  the   said   trust  fund   without   bringing   such   appointed   share 
or  shares,   interest   or   interests,   into    hotchpot    and    accounting 
for  the  same  accordingly  j^  Provided  always,  and  it  is  hereby 
agreed,  that  the  said  trustees  or  trustee  may  at  any  time  or  times 
after  the  death  of  the  said  [husband]  and  [u«/e],  or  in  their,  his,  or 
her  lifetime,  with  their,  his,  or  her  consent  in  writing,  raise  any 
part  or  parts,  not  exceeding  in  the  whole  one-half  of  the  then 
vested,  contingent,  presumptive,  or  expectant  share,  or  respective 
shares  of  any  child  or  children  of  the  said  intended  marriage  in  the 
said  trust  fund  under  the  trusts  hereinbefore  contained,  and  pay 
or  apply  the  same  in  or  towards  the  advancement,  [including  in 
the  term  "advancement"  the  expenses  of  a  college  or  university 
education,  or  of  preparation  for  any  profession  or  employment,  or 
competitive  examination '],  or  otherwise  for  the  benefit  of  such 

*  Tlie  insertion  of  the  words  in  brackets  is  not  necessary,  and  may  be 
omitted  if  desired.  The  insertion  is,  however,  useful  as  calling  attention  to 
the  limits  within  which  any  appointment  must  operate.  An  appointment 
under  a  power  not  so  restricted  will  be  good,  provided  the  appointment 
does  not  itself  violate  the  rule  against  perpetuities  (Rotdledge  v.  Dorril, 
2  Ves.  Jun.  357  ;  see  Thomas  v.  Thomas,  14  Sim.  234). 

^  Express  powers  for  maintenance,  education  and  accumulation  of 
surplus  may  now  generally  be,  and  are  in  this  Precedent,  omitted  in 
reliance  on  the  statutory  provisions. 

3  The  words  in  brackets  may  be  usefully  inserted  in  a  settlement  of 
the  property  of  persons  of  moderate  means. 
VOL.  xin.  21 


{ 


322 


SETTLEMENTS,  ETC.— PEECEDENTS 


ultimate 
trusts  for 
wiie  in 
default  of 
issue. 


Second 
testatum. 

Covenant 
to  settle 
after- 
acquired 
property. 


child,  children,  or  other  issue  in  such  manner  as  the  said  trustees 
or  trustee  shall  think  fit :  And  it  is  hereby  agreed  that  if  there 
shall  be  no  child  of  the  said  intended  marriage  who,  being  a  son, 
shall  attain  the  age  of  twenty-one  years,  or  being  a  daughter  shall 
attain   that  age  or  marry,  [with  such  consent  as  aforesaid],  then, 
subject  and  without  prejudice  to  the  trusts  and  powers  herein- 
before declared  and  contained,  or  by  law  vested  in  the  said  trustees 
or  trustee,  they  or  he,  the  said  trustees  or  trustee,  shall  stand 
possessed  of  the  said  trust  fund  and  the  income  thereof,  or  so  much 
thereof  as  shall  not  have  become  vested  or  been  applied  under  any 
of  such  trusts  or  powers,  upon  the  trusts  following,  that  is  to  say : 
In  trust  for  such  person  or  persons,  and  for  such  purposes,  as  the 
said  [wife]  shall  during  coverture  by  will  or  codicil,  or  when  not 
under  coverture  by  any  deed  or  deeds  with  or  without  power  of 
revocation  and  new  appointment,  or  by  will  or  codicil  appoint; 
And  in  default  of  such  appointment,  and  so  far  as  no  such  appoint- 
ment shall  extend,  upon  the  trusts  following,  that  is  to  say,  if  the 
said  [wife]  shall  survive  the  said  [husband],  then  In  TRUST  for  the 
said  [wife]  absolutely,  but  so  that  she  shall  not  during  the  said 
intended  coverture  have  power  to  dispose  of  or  charge  such  rever- 
sionary absolute  interest  by  way  of  anticipation ;  But  if  the  said 
[husband]  shall  survive  the  said  [wt/e],  then  In  trust  for  such 
person  or  persons  as  would  have  become  entitled  thereto  under  the 
statutes  for  the  distribution  of  the  effects  of  intestates  had  she  died 
possessed  thereof  intestate  and  without  ever  having  been  married, 
such  persons,  if  more  than  one,  to  take  as  tenants  in  common  in  the 
shares  in  which  they  would  have  taken  under  the  same  statutes : 
AND  THIS  INDENTURE  ALSO  WITNESSETH  that,  in  pur- 
suance of  the  said  agreement  in  this  behalf,  and  for  the  considera- 
tion aforesaid,  it  is  hereby  agreed  and  declared,  and  the  said  [ivife] 
hereby  covenants  with  the  said  [trustees]  that  if  the  said  intended 
marriage  shall  be  solemnised,  and  if  the  said  [wife]  shall  then  be, 
or  shall  at  any  time  during  the  now  intended  coverture  become, 
in  any  manner,  seised,  possessed  of,  or  entitled  to,  or  acquire  an 
absolute  power  of  disposition  over  any  real  or  personal  property, 
which  shall  amount  or  be  equal  in  value  from  any  one  source,  at 
any  one  time,  to  the  sum  of  £         ,  for  any  estate  or  interest  what- 
soever, save  only  and  except  the  said  trust  fund  hereby  settled, 
and  any  estate  or  interest  to  which  she  shall  be  or  become  entitled 
for  her  life  only,  or  for  a  less  period,  and  jewels,  trinkets,  orna- 
ments, plate,  pictures,  prints,  books,  furniture  and  other  moveable 
chattels  (which  excepted  premises  it  is  hereby  agreed  and  declared 
shall  belong  to  her  absolutely,  and,  as  to  any  such  life  estates  or 
interests  as  aforesaid,  for  her  separate  use  without  power  of  antici- 
pation), and  save  and  except  any  property  as  to  which  the  donor, 
settlor,  or  testator,  from  whom  the  same  shall  be  acquired,  shall 
indicate  an  intention  that  the  same  shall  not  fall  under  the  opera- 
tion of  such  an  agreement  or  stipulation  as  this  present  agreement, 
then,  and  so  often  as  the  same  shall  happen,  the  said  [wife],  and  all 
other  necessary  parties,  shall  at  the  cost  of  the  trust  estate,  from 


SETTLEMENTS,  ETC.— PEECEDENTS  323 

time  to  time  as  soon  as  circumstances  will  admit  effectually  settle 

and  assure  such  other  present  or  after-acquired  property,  with  the 

exceptions  aforesaid,  or  cause  the  same  to  be  effectually  vested  in 

Declaration  the  Said  trustees  or  trustee,  Upon  trust  with  all  convenient  speed 

afte™*    °    and  in  such  manner  as  the  said  trustees  or  trustee  shall  think  fit  to 

property,     ^ell  or  convert  the  same  into  money,  and  to  stand  possessed  of  the 

proceeds  of  such  sale  or  conversion  upon  the  same  trusts,  and  with 

and   subject   to   the   same    powers   and    provisions   as   are   herein 

Proviso  as    declared  of  the  said  trust  fund ;  Provided  always  that  it  shall 

to  rcvcr* 

sionary        not  be  obligatory  on  the  said  trustees  or  trustee  to  convert  into 

proper  y.     jj^Qjjgy  g^^y  other  present  or  after-acquired  property  of  the  said 

[wife]  which  is  of  a  reversionary  nature  whilst  the  same  shall  con- 

Powerfor    tinuc  reversionary  J   Provided  always,  and  it  is  hereby  agreed 

wife"to^       and  declared  that,  if  the  said  [wife]  shall  survive  the  said  [husband], 

fun^s  ^om  it  shall  be  lawful  for  the  said  [w/e],  at  any  time  or  times  after  the 

fn'^propor-'    death  of  the  said  [husha7id],  either  in  contemplation  of  or  after  any 

lion  to  the    future  marriage,  by  any  deed  or  deeds,  with  or  without  power  of 

the  children  revocation  and  new  appointment,  or  by  will,  or  codicil,  to  appoint  in 

intended     favour  of  any  husband  with  whom  she  may  intermarry  after  the  death 

andto^      of  the  Said  [husband],  and  of  her  child,  children,  and  issue  by  any  in 

future"hu8-  futurc  husband  or  husbands  with  whom  she  may  intermarry,  after 

hf  favour  of  the  decease  of  the  said  [husband],  such  shares  and  interests  of  and 

hLm!i'*'^^  ^^  in  the  property  hereby  settled  and  agreed  to  be  settled  as  follows, 

that  is  to  say  :  in  case  there  shall  not  be  more  than  one  child  of  the 

now  intended  marriage,  who  being  a  son  shall  attain  the  age  of 

twenty-one  years  or  die  under  that  age  leaving  issue,  or  being  a 

*  The  following  are  alternative  forms  of  clauses  giving  power  to  make 
provision  in  favour  of  a  future  husband  and  the  issue    of   a  future 
marriage  : — 
Power  for  (1)  "PROVIDED  ALWAYS,  and  it  is  hereby  agreed  and  declared,  that  if 

drawa^''*^''^'^  said  [ivife]  shall  survive  the  said  [husband]  and  marry  again,  it  shall  be 
definite  lawful  for  her  by  deed  either  in  contemplation  of  or  after  such  remarriage 
th"*  ettl™  '°  withdraw  from  the  settlement  hereby  made  out  of  the  property  hereby 
ment  on  a    settled  or  covenanted  to  be  settled  a  sum  of  not  exceeding  £  ;  pro- 

second  vided  nevertheless  that  no  such  withdrawal  shall  be  made  it  there  shall  be 
™*"^"^®'  more  than  four  children  of  the  said  now  intended  marriage  who  being 
sons  shall  attain  the  age  of  twenty-one  years  or  die  under  that  age  leaving 
issue,  or  being  daughters  shall  attain  that  age  or  marry  under  that  age ; 
provided  also  that  this  power  of  withdrawal  snail  not  be  exercisable  to  the 
prejudice  of  any  previous  appointment  in  favour  of  a  child  or  issue  of  the 
said  now  intended  marriage. ' 
Ppwer  for  (2)  "  Provided  always,  and  it  is  hereby  agreed  and  declared,  that  if 

incfude        ^^"^  ^^^  \wife]  shall  survive  the  said  [hushand]  and  shall  marry  again  while 
children  of   there  shall  be  living  any  child  or  children  of  her  said  now  intended 
a  8ec9nd      marriage,  then  and  in  such  case  the  children  or  child  of  such  second  marriage 
ap^poim-^ '"  of  the  said  [wife]  shall  become  and  be  objects  or  an  object  of  the  power  of 
ment  under  appointment  hereinbefore  contained  which  will  then  be  vested  in  the  said 
chndivn°of  ['"'^/^]  ^^  ^^^®  survivor  of  the  said  \liushand]  and  herself,  and  of  all  and 
intended      singular  Other  the  trusts  powers  ana  provisions  hereinbefore  contained  in 
marriage,     favour  of  the  child  or  children  of  the  said  now  intended  marriage  in  like 
manner  to  all  intents  and  purposes  as  if  the  said  child  or  children  of  such 
second  marriage  had  been  a  child  or  children  of  the  said  now  intended 
marriage  but  so  nevertheless  as  not  to  prejudice  or  affect  any  exercise  by 
the  said  [husband]  and  [wife]  of  their  joint  power  of  appointment  herein- 
before contained  in  favour  of  any  issue  of  the  said  now  intended  marriage, 
nor  any  exercise  by  the  said  [wife]  alone  previously  to  her  second  marriage 
of  the  aforesaid  power  vested  in  her  as  such  survivor  as  aforesaid." 


324  SETTLEMENTS,  ETC.— PRECEDENTS 

daughter  shall  attain  that  age  or  marry,  then  two  equal  third  parts 
or  shares  of  such  property ;  and  in  case  there  shall  be  more  than 
one  such  child,  but  not  more  than  three  such  children,  then  one 
equal  half  part  or  share  of  such  property ;  and  in  case  there  shall 
be  more  than  three,  but  not  more  than  five  such  children,  then 
one  equal  third  part  or  share  of  such  property,  in  favour  of  any 
such  future  husband,  and  the  child,  children,  or  remote  issue  of  the 
said  [ivife]  by  every  or  any  such  future  husband,  but  so  that  no  such 
future  husband  shall  by  virtue  of  any  such  appointment  take  any 
greater  interest  in  such  property  than  for  his  life,  and  that  the 
trusts,  powers,  and  provisions  in  favour  of  the  child,  children,  or 
issue  of  the  said  [wife]  by  any  such  future  husband,  shall  be  similar 
to  those  herein  declared  in  favour  of  the  child,  children,  and  issue 
of  the  now  intended  marriage,  failing  which  the  portion  of  the  trust 
property  to  be  appointed  under  this  power  shall  remain  subject  to 
the  trusts  of  this  settlement,  and  so  that  the  interest  or  share  of 
property  to  be  appointed  under  this  power  shall  not  be  withdrawn 
from  the  trusteeship  of  these  presents,  until  absolutely  and  inde- 
feasibly  vested  in  some  person  in  possession ;  Provided  always 
that  any  such  appointment  or  appointments  as  last  aforesaid  may 
be  made  by  the  said  [wife]  under  the  aforesaid  power  enabling  her 
in  that  behalf,  while  it  shall  be  uncertain  whether  or  to  what  extent 
the  same  shall  be  capable  of  taking  effect,  and  if  so  made  shall  take 
effect  according  to  the  event,  and  to  the  number  of  the  children  of 
the  said  now  intended  marriage  who  being  sons  or  a  son  shall  attain 
the  age  of  twenty-one  years  or  die  under  that  age  leaving  issue,  or 
being  daughters  or  a  daughter  shall  attain  that  age  or  marry  under 
Trustee  that  age :  Provided  always,  and  it  is  hereby  declared,  that  the 
clauses:  statutory  power  of  appointing  a  new  trustee  or  new  trustees  of  these 
P^p^fjj^jjg^  presents,  when  and  so  often  as  a  vacancy  shall  occur,  shall  be  vested 
trustees;  [^  the  said  [husband]  and  [wife]  during  their  joint  lives  and  the 
survivor  of  them  during  his  or  her  life  :  Provided  always  that  in 

special  in-  " 

demnity;     addition  to  the  indemnity  given  by  law  to  trustees  the  said  trustees 
or  trustee  shall  not  be  answerable  or  accountable  for  lending  on  the 
security  of   any  hereditaments  of   a   less   than   marketable   title ; 
Dowerfor     PROVIDED  ALWAYS   that   any   trustee   of   these  presents   being   a 
professional  solicitor  or  Other  person  engaged  in  any  profession    or  business 
&c.,  to  J      may  be  so  employed  or  act  in  or  about  the  execution  of  the  trusts 
of  these  presents ;  and  any  trustee  so  employed  or  acting  shall  be 
entitled  to  and  be  paid  all  usual  or  proper  professional  or  other 
charges  for  any  business  or  act  done  by  him  or  his  firm  in  the 
premises,  whether  in  the  ordinary  course  of  his  profession  or  busi- 
ness or  not,  and  although  not  of  a  nature  requiring  the  employment. 
of  a  solicitor  or  other  professional  person.^ 
In  WITNESS,  &c. 

^  See  Be  Chalinder  and  Herington,  [1907]  1  Ch.  58. 


charge  for 


SETTLEMENTS,  ETC.— PEECEDENTS  325 

II.  SETTLEMENT  m  Marriage  {without  Recitals)  of  Railway 
Shares,  <&c.,  and  Foreign  Bonds  belonging  to  the  Intended 
Husband ;  Usual  Trusts  for  the  Husband  for  Life,  for  the  Wife 
surviving  for  her  Life,  and  in  favour  of  the  Issue  of  the  Marriage  ; 
Ultimate  Trust  for  Husband. 

THIS  INDENTURE,  made  the  day  of  19    , 

Parties.       BETWEEN  [intended  husband],  of,  &c.,  of  the  first  part ;  [intended  wife\ 
of,  &c.,  of  the  second  part ;  and  [trustee],  of,  &c.,  and  [trustee],  of,  &c., 
TeOaium.     of  the  third  part :  WITNESSETH  that,  in  pursuance  of  an  agree- 
o/tro^^o?  Daent  entered  into  upon  the  treaty  for  a  marriage  which  is  intended 
shares  ^  shortly  to  be  solemnised  between  the  said  [husband]  and  [wi/e],  and 
Bpecified  in  in  consideration  of  such  intended  marriage,  it  is  hereby  agreed  and 
declared  that  the   said   [trustees],  their  executors,  administrators, 
and  assigns,  shall  stand  possessed  of  the  railway  and  other  shares, 
and  also  of  the  several  bonds  and  securities  specified  in  the  schedule 
hereunder  written  respectively  and  belonging  to  the  said  [husband], 
which  shares,  bonds,  and  securities,  have  been  respectively  trans- 
ferred into  the  names  of,  and  delivered  unto  the  said  [trustees], 
forhusband  In  TRUST  for  the  said  [husband],  until  the  solemnisation  of  the  said 
riage ;         intended  marriage,  and  thereafter  Upon  trust  that  the  said  [trustees], 
warcteto'"    ^^  *'^®  survivor  of  them,  or  the  executors  or  administrators  of  such 
retain         survivor,  or  other  the  trustees  or  trustee  for  the  time  being  of  these 
investments  presents  (hereinafter  called  "the  said  trustees  or  trustee"),  shall 
invest         either  allow  the  said  shares,  bonds,  and  securities  which  have  been 
so  transferred  and  delivered  to  the  said  [trustees]  respectively  as 
aforesaid,  or  any  of  them,  or  any  part  thereof  respectively  to  remain 
in  their  present  state  of  investment  respectively,  or  shall  upon  the 
request  in  writing  [or  may  with  the  consent]  of  the  said  [husband] 
and  [wife]  during  their  joint  lives,  and  of  the  survivor  during  his  or 
her  life,  and  after  the  death  of  such  survivor  at  the  discretion  of  the 
said  trustees  or  trustee,  sell  or  dispose  of  the  same  trust  premises  or 
any  of  them  or  any  part  thereof  respectively,  and  lay  out  and  invest  ^ 
the  moneys  to  arise  therefrom  in  their  or  his  names  or  name,  or 
Investment  under  their  or  his  legal  control,  in  the  purchase  of  any  Parliamentary 
(Oompre-     ^^  Government  stock  or  funds  of  the  United  Kingdom,  or  of  any 
range?       stock  or  funds  secured  upon  the  revenues  of  British  India,  or  of  any 
colony  or  dependency  of  the  United  Kingdom  or  of  any  foreign 
Government  or  State,  or  in  the  purchase  of  stock  of  the  Bank  of 
England  or  Ireland,  or  of  the  London  County  Council,  or  of  deben- 
ture stock  or  guaranteed  stock  of  any  county,  municipal,  or  other 
local  or  public  authority  or  body  in  the  United  Kingdom,  or  British 
India,  or  any  colony  or  dependency  of  the  United  Kingdom  or  any 
foreign  country,  or  in  the  purchase  of  debenture  stock  or  pre- 
ference stock,  or  preference  shares,  or  ordinary  stock  or  shares  of 
any  railway  company  in  the  United  Kingdom  or  British  India,  or 
in  any  colony  or  dependency  of  the  United  Kingdom,  or  of  any 
foreign   country,  in   actual  work  and   paying  a  dividend  on  its 

*  The  investment  clause  in  this  Precedent  is  wide.    For  clause  restricted 
to  trust  investments,  see  Precedent  I.  supra. 


326  SETTLEMENTS,  ETC.— PRECEDENTS 

ordinary  stock  or  shares,  or  of  any  stock  or  shares  of  any  company 
in  the  United  Kingdom  having  the  liability  of  its  members  limited 
by  the  Companies  Act,   1862,  or  some  other  Act  of  Parliament 
relating  to  joint-stock  companies ;  Or  at  interest  upon  securities  of 
the  Government  of  the  United  Kingdom,  or  upon  freehold,  copy- 
hold, leasehold,  or  chattel  real  securities  in  the  United  Kingdom,  or 
at  interest  upon  any  securities  of,  or  guaranteed  by  any  Government, 
or  upon  the  security  of  any  real  or  immovable   property   either 
together  with  or  without  any  movable  property,  in  British  India, 
or   any  colony  or   dependency  of   the  United  Kingdom,  or   any 
foreign  country,  or  at  interest  upon  the  debentures,  mortgages,  or 
securities  of  any  county,  municipal,  local  public  authority  or  body, 
or  of  any  railway  or  other  company  in  the  United  Kingdom  or 
British  India,  or  any  colony  or  dependency  of  the  United  Kingdom 
or  any  foreign  country,  or  on  the  securities  of  rates  or  tolls  made  or 
levied  by  any  such  authority  or  body  as  aforesaid,  or  at  interest 
upon  charges  created  under  the  Improvement  of  Land  Act,  1864, 
or  any  mortgages  thereof,  or  at  interest  upon  the  security  of  a  life 
interest   upon   any  such    real  or   personal   property  as   aforesaid, 
coupled  with  a  policy  of  assurance  on  the  life  of  the  person  on 
whose  death  such  life  interest  will  determine ;  And  shall  at  such 
request,  or  may  at  such  discretion  as  aforesaid  respectively,  as  the 
case  may  be,  from  time  to  time  vary,  &c.  (insert  power  to  vary  invest- 
ments, Precedent  I.  p.  320,  supra) :    Provided  always  that  any 
^?i^^on°      investment  made  under  the  trust  or  power  in  that  behalf  herein- 
mJfrtgages  before  contained  on  mortgage  may  be  made  ^  subject  to  any  prior 
tributonr     charges  or  incumbrances  affecting  the  property  mortgaged,  or  may 
mortgages.  }yQ  made  to  or  in  favour  of  the  said  trustees  or  trustee  jointly  with 
any  other  persons  or  person  by  way  of  contributory  mortgage  to  be 
taken  either  in  the  names  or  name  of  any  other  persons  or  person 
in  trust  for  the  contributories  or  otherwise  as  the  said  trustees  or 
trustee  shall  think  expedient :  Provided  also  that  the  said  trustees 
pay  calls  on  or  trustee  may  apply  any  part  of  the  capital  of  the  said  trust 
shares.        premises  in  or  towards  payment  of  the  calls  on  any  shares  for  the 
time  being  forming  part  of  the  same  premises ;  Provided  always, 
deposit        and  it  is  hereby  agreed  and  declared  that  any  deeds,  securities,  or 
sTCurittes     Other  documents,  including  securities  to  bearer,  from  time  to  time 
CT^tody.      held  by  the  said  trustees  or  trustee  as  trustees  or  trustee  of  these 
presents  may  [or  shall]  be  deposited  by  them  or  him  with  any 
banker,  or  banking  firm  or  company,  or  other  company  whose  busi- 
ness it  is  to  take  charge  of  such  documents,  for  safe  custody  or 
receipt  of  dividends,  without  being  responsible  for  any  loss  occa- 
sioned by  or  by  reason  of  such  deposit;  and  the  said  trustees  or 
trustee  may  pay  out  of  the  income  of  the  trust  premises  any  sum 
payable  on  account  of   such  deposit,   safe   custody  or   receipt   of 
„    .    .     dividends  as  aforesaid  :  And  it  is  hereby  agreed  and  declared 

Trusts  01  1  •  1 

income  for   that  the  Said  trustees  or  trustee  shall  pay  the  income  of  the  said 

husband  ...  iri.- 

lor  life;  railway  and  other  shares,  bonds,  and  securities,  and  of  the  invest- 
ments for  the  time  being  representing  the  same  respectively  (which 
shares,  bonds,  securities,  and  investments  are  hereinafter  referred 

*  This  is  an  unusual  clause. 


SETTLEMENTS,  ETC.— PEECEDENTS  327 

to  as  "  the  said  trust  fund  ")  unto  the  said  [husband],  and  his  assigns 
for  wife       during  his  life  :  And  from  and  after  the  death  of  the  said  [husband], 
f^e°^     shall  pay  the  income  of  the  said  trust  fund  to  the  said  [loife]  if  she 
shall  survive  him,  during  her  life,  for  her  separate  use,  but  so  that 
she  shall  not,  during  the  said  intended  coverture,  have  power  to 
dispose  of   or  charge   such   reversionary  life   interest   by  way  of 
remainder    anticipation  :  And  from  and  after  the  death  of  the  survivor  of  them, 
hufiband^  the  Said  [husband]  and  [wife]  shall  stand  possessed  of  the  said  trust 
shair*^^      ^und  and  the  income  thereof.  In  trust  for  all  or  any  of  the  children 
(Suni.%rm)-^^  remoter  issue  of  the  said  intended  marriage  in  such  shares,  and 
generally  in  such  manner  as  the  said  [husband]  and  [loife]  shall  by 
remainder    any  deed  or  deeds  revocable  or  irrevocable  jointly  appoint :  And  in 
^iu'^^""^  default  of  and  subject  to  any  such  appointment  then  as  the  survivor 
appoint;      Qf  them  the  said  [husband]  and  [wife]  shall  in  like  manner  or  by  will 
trusts  in      or  codicil  appoint;  And  in  default  of  and  subject  to  any  appoint 
apffo^nt^'     ment   under  the  respective  powers    hereinbefore    contained :    In 
ment,  &c.     jRUST  [trust  for  children  in  default  of  appointment ;  hotchpot  clause ; 
Ultimate     po^er  of  advancement.  Precedent  I.  p.  321,  supra] :  And  it  is  hereby 
irusba^ndin  AGREED  AND  DECLARED  that  if  there   shall  be   no  child   of  the 
default  of     said  intended  marriage,  who  being  a  son  shall  attain  the  age  of 
twenty-one  years,  or  being  a  daughter  shall   attain  that  age  or 
marry,  then,  subject  to  the  trusts  and  powers   hereinbefore  de- 
clared and  contained,  or  by  law  vested  in  the  said  trustees  or 
trustee,  they  or  he,  the  said  trustees  or  trustee,  shall  stand  pos- 
sessed of  the  said  trust  fund  and  the  income  thereof,  or  so  much 
thereof  as  shall  not  have  become  vested  or  been  applied  under  any 
of  such  trusts  or  powers.  In  trust  for  the  said  [husband]  abso- 
Provisothatlutely  :i  Provided  always,  and  it  is  hereby  agreed  that  if  the 
wUhdr^^  said  [husband]  shall  at  any  time  or  times  be  desirous  of  withdrawing 
^msetne-  ^^om  the  settlement  hereby  intended  to  be  created,  all  or  any  of  the 
atimunK*'    ^^^^   railway   shares,  bonds,  and  securities  specified   in   the  said 
other8.2       schedule  hereunder  written,  or  the  stocks,  funds,  shares,  or  securities 
by  which  the  same  shall  under  or  by  virtue  of  the  trusts  or  powers 
of    investment  and   varying   investments    hereinbefore    contained 
respectively,  or  of  this  provision  be  represented,  or  any  part  or 
parts  thereof  respectively,  he  shall  be  at  liberty  so  to  do,  sub- 
stituting from  time  to  time  to  the  satisfaction  of  the  said  trustees 
or  trustee  other  stocks,  funds,  shares,  or  securities  of  the  nature  or 
kind  hereby  authorised  as  investments  which  in  the  estimation  of 
the  said  trustees  or  trustee  shall  be  of  equivalent  value :  [Trustee 
Clauses,  Precedent  I,  p.  324,  supra]. 
In  witness,  &c. 

The  Schedule  above  referred  to. 

Proviso  giv-  ^  Sometimes  a  proviso  to  the  following  effect  is  inserted  : — "  Provided 
in^Tau^r*  NEVERTHELESS  that,  if  there  shall  be  no  such  child  of  the  said  intended 
of  issue,  marriage  as  aforesaid,  then  the  said  trustees  or  trustee  shall  upon  the 
only  one  failure  or  in  default  of  such  issue,  set  apart  and  appropriate  one  moiety  of 
income  of  ^he  said  trust  fund,  and  pay  the  income  thereof  to  the  said  \wife\\i  she 
the  trust  shall  survive  the  said  \hu8hand\  during  her  life  in  manner  aforesaid,  and 
^"^^  shall  hold  the  other  moiety  of  the  said  trust  fund  In  trust  for  the  executors 

or  administrators  of  the  said  \hu8hand'\  as  part  of  his  personal  estate." 

2  This  proviso  will  not,  of  course,  be  inserted  in  the  absence  of  special 

instructions. 


328 


SETTLEMENTS,  ETC.— PEECEDENTS 


Parties. 


Recitals : 

of  title  to 
policy  and 
agreement 
for  settle- 
ment 
thereof. 


Testatum. 


III.  SETTLEMENT  m  Marriage  of  a  Policy  of  Insurance 

effected  on  the  Life  of   the  Intended    Husband    in    his    ovm 

Name  for  the  Benefit  of  the  Intended  Wife  and  the  Issue  of 
the  Marriage. 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [intended  husband],  of,  &c.,  of  the  first  part ;  [intended  wife], 
of,  &c.,  of  the  second  part;  and  [trustee],  of,  &c.,  and  [t7-u.stee],  of, 
&c.,  of  the  third  part :  Whereas  [recite  intended  marriage,  ante,  p. 
319]:  And  whereas  the  said  [husband]  is  absolutely  entitled  to  a 
policy  of  assurance  effected  by  him  on  his  own  life  and  in  his  own 
name  for  the  sum  of  £  ,  with  the  Life  Assurance 

Society,  dated  the  day  of  19     ,  and  numbered 

,  and  under  the  annual  premium  of  £  ,  and  upon 

the  treaty  for  the  said  marriage  it  was  agreed  that  the  same  policy 
should  be  assigned  to  the  said  [trustees]  in  manner  hereinafter 
appearing  upon  the  trusts  and  with  and  subject  to  the  powers  and 
provisions  hereinafter  contained  of  and  concerning  the  same :  NOW 
THIS  INDENTURE  WITNESSETH  that,  in  pursuance  of  the 
Assignment  Said  agreement  and  in  consideration  of  the  said  intended  marriage 
tnwte^^  °  the  said  [husband]  with  the  approbation  of  the  said  [wife]  (hereby 
testified)  hereby  assigns,  and  as  settlor  conveys  unto  the  said 
[trustees],  their  executors,  administrators  and  assigns.  All  the  said 
policy  of  assurance  on  the  life  of  the  said  husband  in  the  said 
Life  Assurance  Society  to  which  he  is  so  entitled  as  aforesaid,  and 
the  said  sum  of  £  thereby  assured,  and  all  moneys  to  be 

recovered  or  received  under  or  by  virtue  of  the  said  policy  by  way 
Habendum,  of  bonus  or  Otherwise,  To  HOLD  the  same  unto  the  said  [trustees], 
In  trust  for  their  executors,  administrators,  and  assigns.  Upon  trust   for  the 
husband  tiUg^j^  [husband]  until  the  solemnisation  of  the  said  intended  marriage 
and  thereafter  upon  the  trusts,  and  with  and  subject  to  the  powers 
and  provisions  hereinafter  declared  concerning  the  same,  And  it 
Declaration  is   hereby  declared  that,    if   the  said  intended   marriage  shall  be 
solemnised,    the   said    trustees   and  the  survivor  of  them,  or  the 
executors  or  administrators  of  such  survivor,  or  other  trustees  or 
trust  for      trustee  for  the  time  being  of  these  presents  (hereinafter  called  "  the 
investment;  ^^^^  trustees  or  trustee")  shall  upon  the  death  of  the  said  [husband] 
receive  all  the  moneys  assured  by  or  to  become  payable  under  or  by 
virtue  of  the  said  policy ;  and  shall  with  the  consent  in  writing  of 
the  said  [wife]  during  her  life,  and,  after  her  death,  at  the  discretion 
of  the  said  trustees  or  trustee  invest  the  same  in  the  name  or  names 
or  under  the  legal  control  of  them  the  said  trustees  or  trustee  in  the 
investment  purchase  of  any  Parliamentary  or  Government  stock  or  funds  of  the 
(fair^range) ;  United  Kingdom,  or  of  any  stock  secured  upon  the  revenues  of  British 
India,  or  of  any  colony  or  dependency  of  the  United  Kingdom,  or  of 
stock  of  the  Bank  of  England  or  Ireland,  or  of  the  London  County 
Council,  or  of  debenture  stock  of  any  county,  municipal,  or  local 

1  Notice  of  this  assignment  should  be  given  to  the  society. 

2  For  other  forms  of    investment    clauses,  see  Precedents  I.  and   II. 
supra. 


marriage, 
and  after 
wards  on 
trusts 
declared. 


of  trusts 
of  policy 
moneys : 


SETTLEMENTS,  ETC.— PEECEDENTS  329 

authority  in  Great  Britain,  but  not  in  Ireland,  or  in  the  purchase  of 
the  debenture  stock,  or  preference  stock,  or  preference  shares  of  any 
railway  or  other  company  in  the  United  Kingdom  incorporated  or 
established  by  charter  or  an  Act  of  Parliament  in  actual  work  and 
paying  a  dividend  upon  its  ordinary  stock  or  shares,  or  of  the  stock 
or  shares  of  any  railway  company  in  the  United  Kingdom  or  India 
on  which  a  fixed  or  minimum  rate  of  dividend  is  guaranteed  by  the 
same  or  any  other  company  or  by  the  Government  of  British  India 
or  any  colony  or  dependency  of  the  United  Kingdom,  or  guaranteed 
by  means  of  a  fixed  rental  payable  by  any  other  company ;  Or  at 
interest  upon  securities  of  the  Government  of  the  United  Kingdom, 
or  upon  freehold,  copyhold,  leasehold  or  chattel  real  securities  in 
England  or  Wales,  but  not  in  Ireland,  or  in  or  upon  the  bonds  or 
securities  of  any  of  the  British  colonies  or  dependencies,  including 
bonds  or  debentures  secured  upon  or  guaranteed  by  the  revenues  of 
British  India,  or  any  bonds  or  securities  which  or  the  interest  upon 
which  are  or  is  guaranteed  by  Parliament,  or  at  interest  upon  the 
debentures  or  mortgages  of  any  railway  or  other  company  in  the 
United  Kingdom  incorporated  by  charter  or  Act  of  Parliament, 
and  paying  a  dividend  as  aforesaid,  or  upon  the  bonds,  deben- 
tures or  securities  of  or  issued  by  any  such  county,  municipal,  or 
local  authority  as  aforesaid,  or  on  the  security  of  rates  or  tolls 
made  or  levied  by  any  such  authority.  [Power  to  vary  investments 
trust  of  ante,  p.  320]:  And  shall  pay  the  income  of  the  said  policy  moneys, 
wife'foriife  ^0^  of  the  investments  for  the  time  being  representing  the  same 
powCT^of  (which  moneys  and  investments  are  hereinafter  called  "  the  said 
anticipation;  trust  fund  "),  unto  the  Said  [tuife]  during  her  life,  for  her  separate 
use,  but  so  that  she  shall  not,  during  the  now  intended  coverture, 
have  power  to  dispose  of  or  charge  such  reversionary  life  interest  by 
trusts  for  way  of  anticipation  :  And  from  and  after  the  death  of  the  said  [wife] 
issue.  shall  stand  possessed  of  the  said  trust  fund  and  the  income  thereof, 

In  trust,  &c.  [far  issue  of  marriage  as  husband  and  vnfe  shall  jointly 
appoint ;  remainder  as  survivor  shall  appoint ;  in  default  of  appointment 
for  children  equally  at  twenty-one  or  marriage ;  hotchpot  clause ;  power  of 
advancement,  ante,  Precedent  I.  p.  321,  supra ;  ultimate  trust  in  default 
Covenants  for  husband  absolutely  ante.  Precedent  II.  p.  327,  supra] :  And  the  said 
to  keep  up  [husband]  hereby  covenants  with  the  said  [trustees],  that  if  the  said 
intended  marriage  shall  be  solemnised,  he,  the  said  [husband],  will 
not  do  or  suffer  or  omit  to  do  any  act  whereby  the  said  policy  or 
any  other  policy  to  be  effected  as  hereinafter  mentioned  may  be- 
come void  or  voidable  :  And  that  if  such  policy  shall  become  voidable, 
the  said  [husband]  will  immediately,  at  his  own  cost,  do  all  things 
necessary  for  restoring  and  keeping  on  foot  the  same,  and  if  such 
policy  shall  become  void,  will  immediately,  at  his  own  cost,  effect  a 
new  or  substituted  policy  or  policies  on  his  life  in  the  names  or 
name  of  the  said  trustees  or  trustee,  in  an  office  to  be  approved 
of  by  them,  for  the  sum  of  £  at  the  least;   And  further, 

that  he  the  said  [husband]  will  regularly  and  punctually  pay  the 
annual  premiums  and  all  other  sums  of  money,  if  any,  which 
may  become  payable  for  keeping  on  foot  the  said  original  policy 


330  SETTLEMENTS,  ETC.— PEECEDENTS 

and  any  new  or  substituted  policy  or  policies,  and  will  from  time  to 
time  deliver  to  the  said  trustees  or  trustee  the  receipt  for  every 
such  payment  within  days  after  the  same  shall  have  become 

payable  :  And  in  case  he  shall  at  any  time  refuse,  neglect  or  omit  to 
pay,  produce,  restore,  or  effect  any  such  premium,  receipt,  or  policy 
within  the  times  or  manner  respectfully  aforesaid,  it  shall  be  lawful 
for,  but  not  obligatory  upon  the  said  trustees  or  trustee,  to  pay  the 
premium,  or  to  restore  the  policy  to  which  any  such  default,  refusal, 
neglect,  or  omission  shall  relate,  or  to  effect  any  such  new  or  sub- 
stituted policy  or  policies  as  aforesaid  in  lieu  thereof ;  And  further 
that  the  said  [husband],  his  heirs,  executors,  or  administrators,  will 
on  demand  repay  to  the  said  trustees  or  trustee,  all  moneys  which 
they  or  he  shall  disburse  for  any  of  the  purposes  aforesaid,  with 
interest  thereon  at  the  rate  of  per  cent,  per  annum,  until 

payment  thereof ;  And  will  do  and  concur  in  all  acts  to  enable  them 
and  him  to  effect  any  such  new  or  other  policy  as  aforesaid ;  And 
that  every  new  policy  to  be  effected  as  hereinbefore  provided,  and 
the  moneys  to  become  payable  thereunder,  shall  be  held  and  applied 
upon  the  trusts  and  with  and  subject  to  the  powers  and  provisions 
hereby  declared  and  expressed  concerning  the  said  original  policy 
Proviso  that  and  the  moneys  to  become  payable  thereunder:  Provided  ALWAYS 

bonuses  iTiflv  i-    V 

be  applied    and  it  is  hereby  agreed  and  declared,  that  any  moneys  which  may 

tion  of        be  from  time  to  time  received  by  the  said  trustees  or  trustee  by  way 

oraddedl'o  of  bonus  in  respcct  of  the  said  policy  hereby  assigned,  or  any  such 

^°  ^^'        substituted  policy  or  policies  as  aforesaid,  may  (so  far  as  the  rules 

and  regulations  of  the  said  Assurance  Society  for  the  time  being  in 

force  may  permit)  be  at  the  option  of   the  said  [husband]  applied 

wholly  or  in  part  in  the   reduction  of  the  premiums  upon  such 

policy,  and  in  default  of  or  subject  to  such  option,  Siuy  such  moneys 

shall  be  added  to  the  said  policy  hereby  assigned,  and  be  held  upon, 

with,  and  subject  to  the  same  trusts,  powers,  and  provisions  as  are 

herein  declared  and  contained  of  the  moneys  assured  by  the  same 

policy,  and  the  investments  for  the  time  being  representing  the  same  : 

Power  for    PROVIDED  ALSO  and  it  is  hereby  further  agreed  and  declared,  that  the 

trustees  to  */  <j 

seller         said  trustees  or  trustee  may,  with  the  consent  in  writing  of  the  said 
policy,  and  [ivife]  during  her  life,  and  after  her  death  at  the  absolute  discretion 
proceeds,     of  the  said  trustees  or  trustee,  if  they  or  he  shall  consider  it  ex- 
pedient so  to  do,  sell  or  dispose  of  the  said  policy  hereby  assigned, 
or  any  such  substituted  policy  or  policies  as  aforesaid,  either  by  way 
of  surrender  to  the  society  or  societies  by  whom  the   same  may 
have  been  granted  respectively  or  otherwise ;  "  And  in  the  event  of 
and  after  any  such  sale  or  disposition  the  said  trustees  or  trustee 
shall,  although  the  said  [husband]  shall  then  be  living,  hold  the  net 
proceeds  of  such  sale  or  disposition  upon  the  trusts  and  with  and 
subject   to  the  powers  and    provisions  hereinbefore  declared  con- 
cerning the  moneys  assured  by  the  said  policy  hereby  assigned,  and 
the  investments  for  the  time  being  representing  the  same,  to  take 
effect  after  the  death  of  the  said  [husband],  and  as  if  he  were  then 
Proviso  for  actually  dead."    Provided  always,  and  it  is  hereby  agreed  and 
trul^^r^°  declared,  that  the  said  trustees  or  trustee  shall   not  be  chargeable 


SETTLEMENTS,  ETC.— PKECEDENTS 


331 


or  responsible  for  any  omission  or  neglect  to  enforce  any  of  the 
covenants  hereinbefore  contained  in  relation  to  the  said  policy 
hereby  assigned,  or  any  such  substituted  policy  or  policies  as  afore- 
said, or  to  see  that  the  same  respectively  are  kept  in  force  or  restored, 
or  for  or  by  reason  of  any  policy  or  policies  lapsing  or  becoming 
void  by  any  means  whatsoever.  [Ti-ustee  clauses,  Precedent  I.  p.  324, 
supra.] 

In  witness,  &c. 


Parties. 


Recitals: 


that  mort- 
gage money 
18  still 
owing; 


agreement 
to  settle. 


First 
testatum. 


Assignment 
of  mortgage 
moneys. 


Habendum. 

Trust  for 
wife  till 
marriage, 
then  on 
trusts  de- 
clared by 
deed  of 
even  date. 


Second 
testatum. 


IV.  TBANSFER  of  Mortgage  (by  Endwsement  on  the  Mortgage- 
deed)  previously  to  Marriage,  upon  Trusts,  which  are  declared  by 
a  separate  Deed  of  Settlement. 

THIS  INDENTURE,  made  the  day  of  19       , 

Between  [intended  wife  and  moiigagee],  of,  &c.,  of  the  first  part ; 
[intended  husband],  of,  &c.,  of  the  second  part ;  [moitgagoi-],  of,  &c., 
of  the  third  part ;  and  [trustee],  of,  &c.,  and  [tiiistee],  of,  &c.,  of  the 
fourth  part :  Whereas  [recite  intended  maniage,  Precedent  I.,  p.  319, 
supra] :  And  whereas  the  within-mentioned  sum  of  £>  is 

still  due  and  owing  to  the  said  [wife]  upon  the  security  of  the 
within-written  indenture,  but  all  interest  for  the  same  has  been 
paid  up  to  the  day  of  last,  as  the  said  [mortgagor] 

and  [wife,  &c.]  do  hereby  respectively  acknowledge ;  And  whereas 
on  the  treaty  for  the  said  intended  marriage  it  was  agreed,  amongst 
other  things,  that  the  said  principal  sum  of  £>  ,  and  all 

interest  due  and  to  become  due  thereon,  and  the  securities  for  the 
same,  should  be  transferred  unto  the  said  [trustees]  in  manner  and 
upon  the  trusts  hereinafter  expressed  :  NOW  THIS  INDENTUKE 
WITNESSETH,  that  in  pursuance  of  the  said  agreement,  and  in 
consideration  of  the  said  intended  marriage,  the  said  [wife,  &c.], 
with  the  approbation  of  the  said  [Jiushand],  and  also  with  the 
privity  of  the  said  [mortgagoi]  (testified  by  their  respective  execu- 
tion hereof),  hereby  assigns  and  as  settlor  conveys  unto  the  said 
[trustees].  All  that  the  said  principal  sura  of  £  secured 

by  the  within-written  indenture,  and  all  interest  due  and  to  become 
due  for  the  same  sum,  and  the  full  benefit  of  all  covenants  and 
other  securities  for  the  payment  of  the  said  principal  sum  and 
interest.  To  hold  all  the  premises  hereinbefore  expressed  to  be 
hereby  assigned.  Unto  the  said  [trustees],  In  trust  for  the  said 
[wife],  her  executors,  administrators,  and  assigns,  until  the  said 
intended  marriage  shall  be  solemnised,  And  after  the  solemnisation 
thereof.  Upon  such  trusts,  and  with  and  subject  to  such  powers, 
agreements,  and  declarations  as  are  or  shall  be  expressed  or  declared 
concerning  the  same  in  an  indenture  intended  to  bear  even  date 
herewith,  and  to  be  executed  immediately  after  these  presents 
and  to  be  made  between  the  said  [liusband],  of  the  first  part,  the 
said  [wife,  &c.],  of  the  second  part,  and  the  said  [tnistees]  of  the 
third  part :  AND  THIS  INDENTURE  ALSO  WITNESSETH, 
that  in  further  pursuance  of  the  said  agreement,  and  in  con- 
sideration of  the  said  intended  marriage,  she  the  said  [wife,  &c.] 


332 


SETTLEMENTS,  ETC.— PEECEDENTS 


Grant  of 
lands  com- 
prised in 
security. 


as  settlor  with  the  approbation  and  privity  of  the  said  [hiisband] 
and  [mortgagor]  respectively  (testified  as  aforesaid)  to  be  executed 
immediately  after  these  presents  and  doth  hereby  convey  unto 
the  said  [trustees],  their  heirs  and  assigns,  All  those  the  within- 
mentioned  messuages,  lands,  tenements,  or  other  hereditaments 
comprised  in  or  expressed  to  be  granted  and  conveyed  by  the 
within-written  indenture,  with  their  respective  rights,  easements, 
and  appurtenances.  To  HOLD  all  the  premises  hereinbefore  assured, 
Unto  and  to  the  use  of  the  said  [trustees],  their  heirs  and  assigns 
for  ever,  subject  to  the  equity  of  redemption  now  subsisting  therein 
under  the  within-written  indenture  [Power  to  appoint  new  trustees, 
Precedent  I.  p.  324,  supra]. 
In  witness,  &c. 


Recitals : 

of  intended 
marriage; 

wife 

entitled  to 
sum  secured 
by  mort- 


aereement 
to  settle ; 


transfer  of 
the  mort- 
gage by 
trustees  by 
deed. 


V.  SETTLEMENT  on  Marriage  of  a  Sum  secured  by  a  Mort- 
gage, which  has  been  transferred  to  the  Trustees  by  a  Deed  of 
Even  Date  (see  last  Precedent),  both  Sums  being  the  Property  of  the 
intended  Wife.  Trusts  in  favour  of  the  Wife  foi-  Life,  then  the 
Husband  for  Life,  then  of  the  Children  of  the  Marriage  as  the 
Wife  shall  appoint,  Daughters  to  have  Shares  double  of  those  of 
Sons,     Ultimate  Trust  for  Wife  in  default  of  Children, 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [intended  husband],  of,  &c.,  of  the  first  part;  [intended 
wife],  of,  &c.,  of  the  second  part ;  and  [trustee],  of,  &c.,  and  [trustee], 
of,  &c.,  of  the  third  part :  Whereas  [recite  intended  marriage.  Prece- 
dent 1.  p.  319,  supra] ;  And  whereas  the  said  [wife]  is  entitled  to 
the  principal  sum  of  £  ,  secured  to  her  with  interest  after 

the  rate  of  per  cent,  per  annum  by  an  indenture  of  mort- 

gage dated  the  day  of  19     ,  and  made  between 

the  [mortgagor]  of  the  one  part  and  [wife]  of  the  other  part :  And 
whereas  upon  the  treaty  for  the  said  intended  marriage  it  was 
agreed  that  the  said  [wife]  should  assign  the  said  principal  sum  of 
£  ,  and  the  interest  due  and  to  become  due  thereon,  and 

the  securities  for  the  same,  unto  the  said  [trustees]  upon  the  trusts 
and  with  and  subject  to  the  powers,  declarations  and  agreements 
hereinafter  declared  concerning  the  same :  And  whereas  in  pur- 
suance of  the  said  agreement,  and  by  an  indenture  bearing  even 
date  herewith  but  executed  before  the  execution  hereof,  and  made 
between  the  said  [wife]  of  the  first  part,  the  said  [husband]  of  the 
second  part,  the  said  [mortgago)-]  of  the  third  part,  and  the  said 
[trustees]  of  the  fourth  part,  the  said  [wi/e],  with  the  approbation 
of  the  said  [husband]  and  also  of  the  said  [moiigagor],  has  assigned 
unto  the  said  [trustees],  their  executors,  administrators  and  assigns, 
the  said  principal  sum  of  £  ,  and  the  interest  due  and  to 

become  due  thereon,  To  hold  the  same  unto  the  said  [trustees] : 
In  trust  for  the  said  [wife],  until  the  said  intended  marriage 
should  be  solemnised,  and  after  the  solemnisation  thereof:  Upon 
and  for  such  trusts  and  purposes,  and  with,  under,  and  subject  to 
such  powers,  agreements,  and  declarations  as  were  or  should  be 


SETTLEMENTS,  ETC.— PKECEDENTS  333 

declared  concerning  the  same  by  an  indenture  therein  referred  to, 
meaning  thereby  these  presents,  and  by  the  said  indenture  now 
in  recital  the  said  [wi/(?],  with  the  privity  and  approbation  of  the 
said  [husband]  and  also  of  the  said  [mortgagor],  has  gi-anted  and 
conveyed  the  hereditaments  comprised  in  the  said  indenture  of 
mortgage  of  the  day  of  19     ,  unto  and  to  the 

use  of  the  said  [trustees],  their  heirs  and  assigns,  subject  to  the 
equity  of  redemption  now  subsisting  therein  under  the  said  inden- 
Teaatum.  ture  of  mortgage:  NOW  THIS  INDENTURE  WITNESSETH, 
that  in  pursuance  of  the  said  agreement,  and  in  consideration  of 
the  said  intended  marriage  :  It  is  hereby  agreed  and  declared 
that  the  said  [trustees],  their  executors,  administrators  and  assigns, 
shall  stand  possessed  of  the  said  sum  oi  £  ,  and   the 

interest  thereof.  Upon  trust  that  they  the   said   [trustees],  and 
the  survivors,  and  survivor  of  them,   and  the  executors  and  ad- 
ministrators of  such  survivor  or  other  the  trustees  or  trustee  of 
these  presents  (hereinafter  called  "  the  said  trustees  or  trustee  ") 
to  continue  shall  either  permit  the  said  sum  to  remain  in  its  present  state  of 
ments;       investment,  or  shall  with  the  consent  in  writing  of  the  said  [wife] 
during  her  life,  and  after  her  decease  with  the  consent  in  writing 
of  the  said  [husband]  during  his  life,  and  after  his  decease  at  the 
caiii"  .      discretion  of  the  said  trustees  or  trustee,  call  in  and  compel  pay- 
and  re-       mcnt  of  the  said  sum  or  any  part  thereof,  and  invest  the  moneys 
"'^^  '        to  arise  thereby  in  their  or  his  names  or  name  [investment  clause, 
to  pay        and  power  to  vary  investments,  Precedents  I.,  II.  and  III.,  supra]  :  And 
wife  with-    SHALL  during  the  joint  lives  of  the  said  [husband]  and  [mfe]  pay 
o?antidpa-  the  incomc  of  the  said  trust  moneys,  stocks,  funds  and  securities 
j'o^tlwesf  (which  are  hereinafter  collectively  called  "  the  said  trust  funds ") 
to  the  said  [wife],  for  her  separate   use,  but  without  power  of 
anticipation  :  And  from  and  after  the  death  of  such  one  of  them, 
to  pay         &c.  [continue  trust  for  survivoi;  Precedent  I.  p.  320,  sup-a] :  And  from 
survivor,      and  after  the  death  of  the  survivor  of  them  the  said  [husband]  and 
Trust  for     \ioife]  shall  stand  possessed  of  the  said  trust  funds  and  the  income 

children  as    L     ./   J  r         n         i 

wife  shall    thereof.  In  trust  for  all  and  every  and  such  one  or  more  exclusively 
of  the  other  or  others  of  the  children  of  the  said  intended  marriage, 
at  such  age  or  time  or  respective  ages  or  times,  and  if  more  than 
one  in  such  shares,  with  such  provisions,  maintenance  and  education 
and  advancement,  and  such  future  or  executory  or  other  trusts  for 
the  benefit  of  the  said  children  or  some  or  one  of  them,  and  subject 
to  such  conditions  and  restrictions,  and  in  such  manner  and  in  all 
respects  as  the  said  [wife]  shall  at  any  time  or  times  by  any  deed 
or  deeds,  with  or  without  power  of  revocation  and  new  appoint- 
in  default    ment,  or  by  will  or  codicil,  from  time  to  time  or  at  any  time  appoint : 
menunwt"  And  in  default  of  any  such  appointment  and  so  far  as  no  such 
dkugwere"' appointment  shall  extend.  In  trust  for  all  and  every  the  children 
dolfwe        or  child  of  the  said  intended  marriage  who  being  sons  or  a  son  shall 
eiittrm.        attain  the  age  of  twenty-one  years,  or  being  daughters  or  a  daughter 
shall  attain  that  age  or  marry,  to  be  divided  between  or  among 
such  children  if  more  than  one  in  equal  shares,  except  that  if  any 
one  or  more  of  them  shall  be  a  son  or  sons  and  any  other  or  others 


334 


SETTLEMENTS,  ETC.— PEECEDENTS 


If  there 
shall  be  no 
child. 


Power  for 
vife  to 
borrow 
sum  of 
funds  on 
insuring 
her  life 
to  the 
amount. 


Trust  of 
policy  as 
the  money 
borrowed. 


Premiums 
to  be  paid 
by  trustees 
out  of  trust 
funds. 


shall  be  a  daughter  or  daughters,  then  the  share  of  each  such  daughter 
shall  be  of  double  the  amount  or  value  of  the  share  of  each  son 
[hotchpot  clause;  power  of  advancement,  Precedent  I.  p.  321,  supra]. 
Provided  always,  and  it  is  hereby  further  agreed  and  declared, 
that  if  there  shall  be  no  child  of  the  said  intended  marriage,  who 
being  a  son  shall  attain  the  age  of  twenty-one  years,  or  being  a 
daughter  shall  attain  that  age  or  marry,  the  said  trustees  or  trustee 
shall  after  such  default  or  failure  of  issue  of  the  said  intended 
marriage  as  aforesaid,  but  subject  and  without  prejudice  to  such 
of  the  trusts  hereinbefore  declared  as  shall  for  the  time  being 
be  subsisting  or  capable  of  taking  effect,  stand  possessed  of  and 
interested  in  the  said  trust  funds,  and  the  income  thereof,  or  of  so 
much  thereof  respectively  as  shall  not  have  become  vested  or  been 
applied  under  any  of  the  trusts  or  powers  herein  contained,  or  by 
law  vested  in  the  said  trustees  or  trustee  [ultimate  trusts  for  wife  in 
default  of  children,  see  Precedent  I.  p.  322,  sicpra] :  Provided  always, 
and  it  is  hereby  further  agreed  and  declared,  that  if  the  said  [wife] 
shall  at  any  time  after  the  solemnisation  of  the  said  intended 
marriage,  by  any  writing  or  writings  under  her  hand  require  the 
said  trustees  or  trustee  to  raise  and  pay  to  her  out  of  the  said  trust 
funds  any  sum  or  sums  of  money  not  exceeding  in  the  whole  the 
sum  of  £  ,  and  shall  effect   at  her  own  expense  in  the 

names  or  name  of  the  said  trustees  or  trustee  at  such  office  or  offices 
as  they  or  he  shall  appoint  an  assurance  or  assurances  on  her  life 
for  the  sum  or  sums  so  required  to  be  raised  and  paid,  and  shall 
deliver  to  them  or  him  the  policy  or  policies  of  such  assurance  or 
assurances,  Then  and  in  every  such  case  the  said  trustees  or  trustee 
shall  raise  and  pay  the  same  sum  or  sums  accordingly :  And  it  is 
hereby  agreed  and  declared  that  the  said  trustees  or  trustee  shall 
stand  possessed  of  and  interested  in  the  sum  or  sums  of  money  to 
be  assured  by  any  such  policy  or  policies  as  aforesaid  or  otherwise 
to  become  payable  by  virtue  thereof,  and  the  stocks,  funds  and 
securities  in  or  upon  which  the  same  may  be  invested  and  the 
income  thereof  respectively.  Upon  the  same  trusts  and  with  and 
subject  to  the  same  powers,  agreements  and  declarations  as  are 
hereinbefore  declared  and  contained  concerning  the  said  trust 
funds  out  of  which  the  sum  or  sums  to  be  so  paid  to  the  said 
[intended  wife]  as  aforesaid  shall  have  been  raised  and  the  interest 
and  annual  produce  thereof  :  And  further  that  the  said  trustees 
or  trustee  shall,  during  the  life  of  the  said  [wife],  pay  all  premiums 
and  other  moneys  which  shall  from  time  to  time  become  payable 
for  keeping  on  foot  any  such  policy  or  policies  as  aforesaid  out 
of  the  income  of  the  said  trust  funds  [trustee  clauses,  Precedent  I. 
p.  324,  supra]. 
In  witness,  &c. 


SETTLEMENTS,  ETC.— PKECEDENTS  335 


YI.  SETTLEMENT  on  Marriage,  of  Stock  in  the  Funds  belonging 
to  the  intended  Husband,  and  a  Share  in  a  Residue  under  a  Will, 
belonging  to  the  intended  Wife.  Usual  Limitations  for  the  Benefit 
of  the  respective  Settlors,  and  the  Objects  of  the  intended  or  any 
Future  Marriage.  Ultimate  Trusts  for  the  Benefit  of  tlie  respective 
Settlors. 

THIS  INDENTUKE,  made  the  day  of 

Parties.  BETWEEN  [intended  husband'],  of,  &c.,  of  the  first  part ;  [intended  wife\ 
of,  &c.,  of  the  second  part ;  and  \trustee\  of,  &c.,  and  \trustee\  of, 
Recitals:  &c.,  of  the  third  part:  Whereas,  in  contemplation  of  the  marriage 
of  transfer  jjq^  intended  between  the  said  \hu^band'\  and  [■m^/<?],  the  said  \hus- 
husband;     band']  has  transferred  the  sum  of  £  ,2^  percent.  Consolidated 

of  wife's      Stock  into  the  names  of  the  said  [trustees];   And  whereas,  under 
share  of       the  will  of  \testator]  late  of,  &c.,  deceased,  dated,  &c.,  and  proved, 
&c.,  the  said  [wife]  is  entitled  to  one-fourth  part  of  the  residue  of 
the  produce  of  the  real  and   personal  estate  of  the  said  [testatoi'], 
subject  to  the  life  estate  of  his  widow  therein,  and  subject  to 
Testatum     increase  in  manner  by  the  said  will  provided :  NOW  THIS  IN- 
DENTURE WITNESSETH,    that  in   consideration   of  the   said 
Assignment  intended  marriage,  the  said  [wife]  hereby  assigns  and  as  settlor 
residua  °     conveys  unto  the  said  [trustees],  All  her  said  fourth  part  of  the 
residue  of  the  said  real  and  personal  estate  of  the  said  [ie.^tator] ; 
And  all  other  her  share  and  shares  and  interest,  present  or  future, 
under   the  said  will :  And   IT  IS  HEREBY  AGREED  that   the   said 
[t7-^ustees]  and  the  survivors  and  survivor  of  them,  and  the  executors 
or  administrators  of  such  survivor  or  other  the  trustees  or  trustee 
for  the  time  being  of  these  presents  (hereinafter  called  "  the  said 
trustees  or  trustee  ")  shall  be  possessed  of  the  said  sum  of  stock  so 
Trusts:       transferred  as  aforesaid.  Upon  trust,  until  the  said  marriage,  for 
f^/hu^'^^nd  the  said  [husband],  and  thereafter  Upon  TRUST,  to  pay  the  income 
then  for      thereof  unto^  the  said  [husband],  during  his  life;  And,  after  his 
ilfe^Then    ^eccase,  to  pay  such  income  unto  the  said  [wi/c],  during  her  life 
^or  children  for  her  separate  use  without  power  of  anticipation  ;  And  after  the 
appoint;      dcccase  of  the  survivor  of  the  said  [husband]  and  the  said  [wi/ej,  to 
deftiuuof    transfer  the  capital  thereof  unto  or  for  the  benefit  of  such  child  or 
appoint-      children  or  other  issue  of  the  said  intended  marriage  [husband]  and 
equally  at    in  such  proportions  and  manner  as  he  shall  by  deed  or  will  appoint. 

tw6iitv-on6 

or  marriage;  And,  subjcct  thereto,  to  transfer  the  same  unto  such  child  or  chil- 
ifnochii-  drcn  of  the  said  intended  marriage  [husband]  as  shall  attain  the  age 
executors,  of  twenty-one  years,  or  [being  a  daughter  or  daughters]  marry,  if 
trators,  or  more  than  one,  in  equal  shares.  But  if  there  be  no  such  child  of 
the  said  intended  marriage,  then,  immediately  after  the  decease 
of  the  said  [wi/e],  to  transfer  the  same  unto  the  said  [hiLsband],  his 
executors,  administrators  or  assigns  :  And  it  is  hereby  further 
AGREED  that  the  said  trustees  or  trustee  shall  stand  possessed  of  the 

1  Sometimes  the  income  of  the  husband's  property  is  protected  from 
his  creditors  by  being  given  immediately  to  the  ■wife  for  her  separate  and 
inalienable  use. 


assigns ; 


336  SETTLEMENTS,  ETC.— PRECEDENTS 

share  or  shares  and  premises  hereby  assigned  by  the  said  [vdfe] 

as  to  wife's  Upon  TRUST  until  the  Said  marriage  for  the  said  Iwife] :  And  there- 
property,  L     •/   J  ■"         ^ 

for  her        after  upon  trust  to  pay  the  income  thereof  unto  the  said  [wife] 
for  Ufe,  then  during  her  life,  for  her  separate  use,  without  power  of  anticipation 
as'sVsiiali^  during  any  coverture  ;  And,  after  her  decease,  to  pay  such  income 
m  default**^  unto  the  Said  [husband]  during  his   life ;  And,  after  the  decease 
men^t^°^°*"  ^^  *^®   survivor  of  them  the  said  [husband]  and  [wife],  shall  stand 
equally.       possessed  of  the  capital  and  income  thereof  In  trust  for  such  child 
or   children   or   other  issue  of  the   said  [tf?i/e],   and  in  such  pro- 
portions and  manner  as  she  shall  by  deed  or  will  appoint ;  And, 
subject  thereto.  In   trust  for  such  child  or  children  of  the  said 
intended  marriage  as  shall  attain  the  age  of  twenty-one  years,  or 
[being  a  daughter  or  daughters],  marry,  if  more  than  one,  in  equal 
shares;  With  power  to  raise  and  apply  for  the  advancement  in 
life  or  otherwise  for  the  benefit  of  any  child  or  children  any  part 
of  his,  her,  or  their  expectant  or  presumptive  share  or  shares  not 
Trusts  in     exceeding  one  half  thereof:  But  if  there  be  no  such  child  of  the 

default  of  .  °  .  i  'p       ■,  •  ^     r      ■  r  -i       i  11  •  ^1 

children  in  said  intended  marriage,  then,  if  the  said  [vnfej  should  survive  the 

wife.  said  [husband],  the  said  trustees  or  trustee  shall  stand  possessed  of 

the  same  share  or  shares  hereby  assigned   by  the  said  [we/e],  In 

trust  for  her  absolutely,  for  her  separate  use  but  without  power  of 

anticipation  ;  and  if  she  should  not  survive  him,  then  In  trust  for 

such  person  or  persons,  and  in  such  manner  as  she  shall  by  will 

appoint;  and,  subject  thereto,  for  such  person  or  persons,  and  in 

such  manner  as  if  the  same  were  her  personal  estate  and  she  had 

trustees'to    ^^^^   intestate,   without  ever    having    been    married  :    Provided 

Wended"^     ALWAYS,  and  it  is  hereby  agreed  and  declared,  that  if  any  of  the 

trust  funds,  trust  funds  hereby  settled  or  covenanted  or  agreed  to  be  settled 

shall  have  become  so  blended  as  to  make  it  doubtful  which  part  or 

parts  thereof  shall  represent  each  original  fund  or  any  part  thereof, 

the  said  trustees  or  trustee  shall  have  power  to  apportion  and  divide 

the  same  for  the  purposes  of  the  trusts  of  these  presents  as  fully 

and  effectually  as  the  same  might  be  done  by  a  Court  of  competent 

jurisdiction  in  an  action  or  other  proceeding  duly  instituted  for  the 

purpose  [trustee  clauses,  Precedent  I.  p.  324,  supra]. 

In  witness,  &c. 

VII.  SETTLEMENT  on  the  Marriage  of  a  Trader,  of  Stocks, 
Shares,  and  Securities  belonging  to  him  upon  Trust  for  himself 
for  Life  charged  with  Maintenance  of  the  Wife  and  Children  of  the 
Marriage ;  and  subject  thereto  upon  Trusts  for  the  Benefit  of  the 
Wife  and  Children.  Power  for  Trustees  to  Lend  the  Trust 
Funds  to  the  Husband  for  the  Purposes  of  his  Business. 

THIS  INDENTURE,  made  the  day  of  19     , 

Parties.  BETWEEN  [intended  husband],  of,  &c.,  of  the  first  part,  [intended  wife], 
of,  &c.,  of  the  second  part,  and  [trustee],  of,  &c.,  and  [trustee],  of,  &c.. 
Recitals:  of  the  third  part;  Whereas  [recite  intended  marriage,  Precedent  I. 
miSe!*^  p.  319,  supra] ;  And  whereas  the  said  [husband]  is  absolutely 
of  title  of     entitled  to  the  several  stocks,  funds,  shares,  and  securities,  specified 

husband  to 
stocks,  &c 


SETTLEMENTS,  ETC.— PRECEDENTS 


337 


Tettatum. 


transferred 
to  trustees. 


Power  for 
trustees  to 
lend  trust 
funds  to 
husband 
for  purposes 
of  his 
business. 


in  the  schedule  hereunder  written,  which  have  been  respectively, 
pursuant  to  an  agreement  entered  into  upon  the  treaty  for  the  said 
intended  marriage,  transferred  or  delivered  unto  the  said  [trustees], 
in  trust  for  the  said  [husband],  his  executors,  administrators,  or 
assigns,  until  the  said  intended  marriage  and  thereafter  upon  the 
trusts  and  with  and  subject  to  the  powers  and  provisions  herein- 
after declared  and  contained  concerning  the  same  :  NOW  THIS 
INDENTURE  WITNESSETH  that,  in  consideration  of  the  said 
Declaration  intended  marriage,  it  is  hereby  agreed  and  declared  that  the  said 
stocks,  Ac,  trustees  shall  from  and  after  the  said  intended  marriage  stand 
possessed  of  the  said  stocks,  funds,  shares,  and  securities  specified 
in  the  said  schedule.  Upon  trust,  that  the  said  [tmstees]  or  the 
survivor  of  them,  or  the  executors  or  administrators  of  such  sur- 
vivor, or  other  the  trustees  or  trustee  for  the  time  being  of  these 
presents  (hereinafter  called  "the  said  trustees ")  shall  either  allow 
the  same  premises  respectively  to  remain,  &c.  [continue  trust  for  in- 
vestment ;  investment  clause  and  fower  to  vary  investments,  Precedents  I., 
II.,  III.,  supra] ;  Provided  always  and  it  is  hereby  agreed  and 
declared,  that  the  said  trustees  shall  at  any  time  or  times  after  the 
solemnisation  of  the  said  intended  marriage,  upon  the  request  in 
writing  of  the  said  [husband]  and  [wife]  during  their  joint  lives  or 
of  the  said  [husband],  after  the  death  of  the  said  [i<^/e],  and  may  if 
they  or  he  the  said  trustees  shall  in  their  discretion  think  fit  upon 
the  like  request  of  the  said  [husband]  alone  during  the  life  of  the 
said  [udfe],  advance  and  lend  to  the  said  [husband]  for  the  purposes 
of  his  business  any  sum  or  sums,  not  exceeding  in  the  whole  the  sum 
of  £  ,  out  of  the  proceeds  of  any  sale  or  sales  which  the  said 

trustees  or  trustee  are  hereby  authorised  to  effect  for  that  purpose 
of  any  of  the  said  stocks,  funds,  shares,  and  securities  specified  in 
the  schedule  hereto,  at  such  rate  of  interest  not  being  less  than 
per  cent,  per  annum,  for  such  period,  and  generally  on  such  terms 
as  the  said  [husband]  may  require  upon  the  security  of  the  bond  or 
covenant  of  the  said  [husband],  either  with  or  without  any  other 
security,  as  may  be  arranged  between  the  said  trustees  or  trustee 
and  the  said  [husband] ;  Provided  always  that  [the  said  trustees 
may,  upon  the  request  in  writing  of  the  said  [vnfe]  during  her  life, 
and  after  her  death,  if  they  shall  all,  if  more  than  one,  so  think  fit, 
but  not  otherwise,  call  in  and  compel  payment  of  any  sum  or  sums 
so  advanced  :  And  that]  the  said  trustees  shall  not  in  any  case  be 
answerable  for  any  loss  of  any  sum  or  sums  of  money  so  advanced 
as  aforesaid,  or  any  part  thereof  respectively,  or  of  interest  thereof  ; 

Declaration  AnD  IT  IS  HEREBY  AGREED   AND   DECLARED   that   the  said  trustees 

money?  °  shall  Stand  possessed  of  the  sum  or  sums  the  repayment  of  which 
is  intended  to  be  so  secured  as  lastly  hereinbefore  provided  and  the 
securities  for  the  same  and  the  investments  thereof,  and  the  interest 
and  income  thereof  respectively,  upon  the  like  trusts  and  with  and 
subject  to  the  like  powers  and  provisions  as  the  sums  or  sum  so 
advanced  and  the  investment  and  the  income  thereof  respectively, 
■  would  have  been  subject  to  if  no  such  advance  or  advances  had 
been  made :  And  it  is  hereby  agreed  and  declared,  that  the 
VOL.  xin.  22 


Proviso  as 
to  repay- 
ment of 
advances. 


Indemnity 
clause. 


advanced  to 
husband. 


338  SETTLEMENTS,  ETC.— PEECEDENTS 

said  trustees  shall  stand  possessed  of  the  said  stocks,  funds,  shares, 

and  securities  specified  in  the  schedule  hereto,  and  the  investments 

for  the  time  being  representing  the  same  (hereinafter  called  "  the 

Trust  of      said  trust  fund  ")  and  the  income  thereof,  Upon  trust  to  pay  the 

husband*^   iucomc  thereof  unto  the  said  [husband]  during  his  life ;  Provided 

charged      ALWAYS  and  it  is  hereby  agreed  that  such  life  interest  of  the  said 

tlnance^f"  [husband]  in  the  said  trust  fund  shall  be  subject  to  and  charged  with 

chUdreni     ^^®  obligation  of  suitably  and  adequately  providing  out   of   the 

income  of  the  said  trust  fund  for  the  maintenance  and  support  of 

the  said  [t^^/e],  and  all  and  every  the  children,  or  child,  of  the  said 

intended  marriage  so  long  as  they  shall  respectively  be  under  the 

Trust  of      age  of  twenty-one  years  and  unmarried  ;  And  it  is  hereby  agreed 

surv^ng'   AND  DECLARED,  that  from  and  after  the  death  of  the  said  [husband], 

wife  for  life.  ^jjQ  trustees  shall  pay  the  income  of  the  said  trust  fund  unto  the 

said  [wi/e],  but  so  that  she  shall  not  have  power  to  dispose  of  such 

Usual  trusts  reversionary  life  interest  by  way  of  anticipation;  And  from  and 

issue,  &c.     after  the  death  of  the  survivor  of  them  the  said  husband  and  wife 

shall,   &c.  [continue  trusts  for  issue  as  husband  and  wife  shall  jointly 

appoint,  remainder  as  survivor  shall  appoint ;  in  default  of  appointment 

for  children  equally ;  hotchpot  clause,  power  of  advancement,  Precedent  I. 

p.  321,  supra,  et  seq. ;  ultimate  trust  for  husband.  Precedent  II.  p.  327, 

Power  for    supra] ;  Provided  always,  and  it  is  hereby  agreed  and  declared, 

appiylrust  that  it  shall  be  lawful  for  the  said  trustees  to  apply  any  part  of 

payment  of  *^6  Said  trust  fund  in  or  towards  payment  of  calls  on  any  shares 

shar^!^       for  the  time  being  forming  part  of  the  said  trust  fund  :  Provided 

Power  for    ALWAYS,  and  it  is  hereby  agreed  and  declared  that  if  the  said  [wife] 

direct  by      shall  survive  the  said  [husband],  and  he  shall  by  his  will  or  any 

annui'ty**'^  codicil  thereto,  so  direct,  the  said  trustees  shall,  notwithstanding 

purchased    ^^®  trusts  hereinbefore  declared,  sell  and  dispose  of  so  much  of  the 

of\rust°"*  trust  fund  hereby  settled  as  shall  be  necessary,  by  the  proceeds 

funds.         whereof  to  purchase  a  clear  annuity  not  exceeding  £  for  the 

life  of  the  said  [wife],  and  shall  apply  such  proceeds  in  the  purchase 

in  the  name  and  for  the  benefit  of  the  said  [wife],  of  an  annuity 

of  the  amount  so  directed  for  her  life,  from  Government,  or  any 

Assurance  Society,  or  other  incorporated  company  empowered  to 

grant  life  assurances,  and  the  said  wife  shall  be  entitled  to  such 

annuity  in  addition  to  the  income  of  the  remainder  of  the  said  trust 

fund  [I'rustee  clauses.  Precedent  I.  p.  324,  supra]. 

In  witness,  &c. 

The  Schedule  above  referred  to. 

VIII.  SETTLEMENT  on  Marriage  of  Furniture  belonging  to  the 
Wife,  giving  the  Wife  an  Absolute  Power  of  Disposition,  and 
subject  thereto  in  Trust  for  Her  for  Life,  with  Remainder  to  the 
Survivor  of  herself  and  Husband. 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [intended  husband],  of,  &c.,  of  the  first  part ;  [intended  wife], 

1  This  proviso  is  intended  to  secure  some  provision  for  the  wife  and 
children,  notwithstanding  that  the  husband's  life  interest  may  pass  to  his 
trustee  in  bankruptcy  (see  Garr  v.  Living,  28  Beav.  644  ;  see  also  Page  v. 
Way,  3  Beav.  20). 


SETTLEMENTS,  ETC.— PRECEDENTS 


339 


Testatum. 


Assign- 
ment of 
furuiture 


and  after- 
acquired 
furniture 


as  wife 

shaU 

appoint. 

In  default 
upon  trust 
to  allow 
wife  to  use 
during 
joint  lives 
of  husband 
and  wife. 

Remainder 
to  survivor 
of  husband 
and  wife. 

Trustees' 
indemnity. 


of,  &c.,  of  the  second  part ;  and  [trustee],  of,  &c.,  and  [trustee],  of,  &c. 
(hereinafter  called  "  the  trustees "),  WITNESSETH  that  in  con- 
sideration of  a  marriage  intended  shortly  to  be  solemnised  between 
the  said  A.  and  B.,  the  said  B.,  as  settlor,  with  the  approbation  of 
the  said  A.,  doth  hereby  assign  unto  the  trustees,  All  and  singular 
the  furniture,  plate,  linen,  china,  glass,  and  other  articles  of  house- 
hold or  domestic  use  or  ornament  now  belonging  to  the  said  B.,  the 
particulars  whereof  are  specified  in  the  schedule  hereto,  [And  ALL 
other  household  effects  which  shall  at  any  time  during  the  intended 
coverture  be  acquired  by  the  said  B.],^  Upon  trust  for  the  said  B. 
until  the  said  marriage,  and  afterwards  Upon  trust  to  dispose  of 
and  deal  with  the  same  in  such  manner  as  the  said  B.  shall  by  any 
writing  under  her  hand,  or  will  or  codicil,  direct.  And  in  default 
of  and  subject  to  any  such  direction,  Upon  Trust  to  allow  the  said 
B.  to  use  and  enjoy  the  same  during  the  joint  lives  of  herself  and 
the  said  A.,  And  after  the  death  of  such  one  of  them  the  said  A. 
and  B.,  as  shall  first  die,  upon  trust  for  the  survivor  of  them,  the 
said  A.  and  B.,  for  his  or  her  absolute  benefit :  And  it  is  hereby 
agreed  that  no  trustee  of  these  presents  shall  be  bound  to  see  to 
the  preservation  of,  or  be  answerable  for  the  loss  or  destruction  of 
the  said  effects  and  premises,  or  any  part  thereof. 
In  witness,  &c. 

^Schedule  of  Furniture.'} 


IX.  CONVEYANCE  of  Freeholds  in  Trust  for  Sale;  the 
Proceeds  of  Sale  to  be  held  upon  Trusts  declared  by  a  Deed  of 
Even  Date.^    Powers  of  Leasing,  &c. 

THIS  INDENTURE,  made  the  day  of  19     , 

Parties.       BETWEEN  [intended  husband],  of,  &c.,  of  the  first  part;   [intended 
wife],  of,  &c.,  of  the  second  part ;  and  [trustee],  of,  &c.,  and  [trmtee]. 
Testatum,     of,  &c.  (hereinafter  called  the  trustees),  of  the  third  part,  WIT- 
NESSETH that,  in  consideration  of  a  marriage  which  is  intended 
In  consider-  shortly  to  be  solcmniscd  between  the  said  [husband]  and  [im/e],  the 
marriage,     Said  [hisband],  with  the  approbation  of  the  said  [i^i/e],  hereby  grants, 
conveys       and  as  settlor  conveys,  unto  the  said  [trustees]  and  their  heirs,  All 
freeholds,    ^pdj-cels],  To  HOLD  the  said  hereditaments  and  premises  unto  the 
Habendum,  said  [trustees]  and  their  heirs,  To  the  use  of  the  said  [hu^banci],  his 
heirs  and  assigns,  until  the  said  intended  marriage,  and  thereafter 

As  to  ^  This  confers  on  the  trustees  only  an  equitable  title  to  the  after-acquired 

settlements  furniture,  which  is  liable  to  be  defeated  by  persons  taking  a  legal  title  under 
acquired      the  wife,  by  bill  of  sale  or  otherwise,  after  she  has  acquired  the  furniture, 
furniture,     and  without  notice  of  the  settlement  (see  Joseph  v.  Lyons,  15  Q.  B.  D.  280  ; 
Hallos  v.  Robinson,  ih.  288). 

2  This  mode  of  settling  a  small  landed  estate  is  the  most  convenient 
that  can  be  adopted.  The  trust  for  sale  will  not  be  carried  into  effect 
unless  it  is  found  expedient  to  do  so,  and  the  effect  of  the  settlement  will, 
therefore,  be  the  same  as  if  the  lands  had  been  settled  directly  to  uses  for 
the  benefit  of  the  parties  and  their  children,  with  a  power  of  sale,  except 
that  the  property  is  by  virtue  of  the  trust  for  sale,  at  once  converted  into 
personalty. 


340 


SETTLEMENTS,  ETC.— PEECEDENTS 


sale; 


and  profits 
tiUaale. 


tosuchusesTo  THE  USE  of  the  said  [trustees],  their  heirs  and  assigns,  Upon 

as  trustees  ^^  o     > 

shau  TRUST  that  they  shall,   with   the  consent  in  writing  of  the  said 

default,  to    [husband]  and  [wi/e],  or  of  the  survivor  of  them,  during  their,  his,  or 
„  '     ,      '  her  lives  or  life,  and  after  the  decease  of  the  survivor  of  them,  at 

Trust  for  '  ' 

sale.  the  discretion  of  the  said  trustees  or  trustee,  sell  the  said  heredita- 

Deciaration  ments  and  premises,  or  any  part  thereof :  And  shall,  from  and  after 
pr^edsof  cvcry  or  any  such  sale,  stand  possessed  of  the  net  moneys  arising 
therefrom,  after  payment  thereout  of  the  costs  and  expenses  of  and 
incident  to  the  sale,  or  otherwise  incurred  in  respect  of  the  premises, 
upon  the  trusts,  and  with  and  subject  to  the  powers  and  provisions, 
declared  and  contained  concerning  the  same  respectively  by  and  in 
an  indenture  already  prepared  and  intended  to  bear  even  date  with, 
and  to  be  executed  immediately  after  the  execution  of  these  presents, 
and  expressed  to  be  made  between  the  same  parties  as  are  parties 
and  of  rents  hereto:  And  shall  pay  the  rents  and  profits  of  the  said  heredita- 
ments and  premises  until  the  same  respectively  shall  be  sold,  to  the 
said  [husband]  and  his  assigns  during  his  life,  and  after  his  death  to 
the  said  [wife]  and  her  assigns  during  her  life  for  her  separate  use, 
but  so  that  she  shall  not  during  the  said  intended  coverture  have 
power  to  dispose  of  or  charge  such  reversionary  life  interest  by  way 
of  anticipation :  And  after  the  death  of  the  survivor  of  them  the 
said  [husband]  and  [mfe]  shall  stand  possessed  of  the  rents  and  profits 
of  the  said  hereditaments  and  premises  until  the  same  shall  be  sold 
upon  such  trusts,  and  with  and  subject  to  such  powers  and  pro- 
visions as  are  declared  and  contained  concerning  the  same  respec- 
tively by  and  in  the  said  indenture  intended  to  bear  even  date 
herewith :  And  it  is  hereby  agreed  and  declared  that  while 
the  said  hereditaments  hereby  assured  or  any  of  them  shall  remain 
unsold  under  the  trust  for  sale  hereinbefore  contained  the  trustees 
may  receive  the  rents  and  profits  thereof,  and  may  at  the  cost  of  the 
said  trust  premises  repair,  drain,  improve,  insure  from  fire,  and 
manage  the  same  or  such  parts  thereof  as  for  the  time  being  shall 
remain  unsold :  And  also  may  adjust  and  determine  in  what 
proportions  the  expense  of  draining  or  other  improvements  shall 
be  borne  by  the  capital  and  income  of  the  said  trust  premises 
respectively  :  And  also  may  adjust,  compound,  and  settle  all 
accounts  and  claims  respecting  the  same,  and  make  such  allowances 
to  tenants  and  others  in  relation  thereto  as  they  or  he  shall  think 
just :  And  also  may  exercise  all  or  any  of  the  powers  of  manage- 
ment lastly  hereinbefore  contained  either  in  person  or  by  salaried 
agents,  bailiffs,  or  deputies  :  Provided  also  that  it  shall  be  lawful 
for  the  trustees,  with  the  consent  of  the  said  [husband]  and  [wifej 
and  the  survivor  of  them,  and  after  the  death  of  the  survivor  of 
them  at  the  discretion  of  the  trustees,  to  let  or  demise  the  said 
hereditaments  hereby  assured,  or  any  part  thereof  which  for  the 
leases"^  time  being  shall  remain  unsold  for  building,  repairing,  or  improving 
Conveyance  purposes,  for  any  term  or  terms  not  exceeding  ninety-nine  years,  or 
°^  trus'tfor^  for  mining  purposes  for  any  term  or  terms  not  exceeding  forty  years, 
and  for  any  consideration  or  considerations  either  by  way  of  fine, 
premium,  rent,  royalty,  or  otherwise  which  they  or  he  shall  consider 


Power  to 
manage. 


Power  to 
delegate. 

Power  to 
grant 
building 
and  im- 
proving 
leases ; 

mining 
leases  and 


sale. 


SETTLEMENTS,  ETC.— PEECEDENTS  341 

fair  and  adequate,  or  for  cultivation,  use,  or  occupation  at  the  best 
rent  for  the  time  being  obtainable  without  taking  any  premium  or 
fine  either  from  year  to  year  or  for  any  term  not  exceeding  twenty- 
one  years  from  the  time  of  letting,  and  with,  under,  and  subject  to 
such  covenants  and  conditions  as  the  trustees  shall  think  proper, 
but  so  that  every  lease  shall  take  effect  in  possession  or  within 
calendar  months  from  the  granting  thereof,  and  shall  be 
executed  in  counterpart  by  the  lessee  or  lessees,  and  that  any 
premium  or  fine  shall  be  treated  as  if  it  were  proceeds  of  the  sale  of 
Power  to  the  hereditaments  in  respect  of  which  it  is  received :  Provided 
fnSt^.°^^  LASTLY,  and  it  is  hereby  agreed  and  declared  that  the  powers  of 
appointing  new  trustees  of  these  presents  as  and  when  occasion 
shall  arise  shall  be  vested  in  the  said  [husband]  and  [wife]  jointly 
during  their  joint  lives  and  in  the  survivor  of  them  during  his  or 
her  life. 

In  witness,  &c. 

X.  SETTLEMENT  on  Marriage  of  the  Proceeds  of  Sale  of 
Keal  Estate  belonging  to  Husband  Conveyed  in  Trust  for  Sale 
by  Deed  of  Even  Date.  Trusts  for  Issue  giving  no  Power  of 
Appointment  to  the  Parents,  the  Issue  of  any  Child  Dying  in 
their  Lifetime  being  Substituted.^ 

Recitals.  THIS  INDENTURE,  made  the  day  of  19    , 

Between  [intended  husband],  of,  &c.,  of  the  first  part ;  [intended 
wife],  of,  &c.,  of  the  second  part ;  and  [ti-ustee],  of,  &c.,  and  [trustee], 
of,  &c.  (hereinafter  called  "  the  trustees  "),  of  the  third  part  [recite 
intended  marriage.  Precedent  I.  p.  319,  supra ;  conveyance  in  trust  for 
witnesseth.  Sale  of  even  date,  i.e.  last  Precedent] :  NOW  THIS  INDENTURE 
Declaration  WITNESSETH,  that  in  pursuance  of  the  said  agreement,  and  in 

of  trusts  of  .  r     ,        .  ,     ,  .  .     .     ,  ,  ,     , 

husband's  Consideration  of  the  intended  marriage,  it  is  hereby  agreed  that  the 
trustees,  their  executors,  administrators,  and  assigns,  shall  stand 
possessed  of  the  residuary  or  net  moneys  to  arise  from  the  sale, 
under  the  said  trust  for  sale  in  the  recited  indenture  of  even  date 
herewith  contained  of  the  said  hereditaments  and  premises  thereby 
assured,  or  any  part  thereof.  Upon  trust  that  the  trustees  shall, 
with  the  consent  in  writing  of  the  said  [husband]  and  [wi/e],  or  the 
survivor  of  them,  during  their,  his,  or  her  lifetime,  and  after  the 

To  invest  death  of  such  survivor,  at  the  discretion  of  the  said  trustees  or 
trustee,  invest  the  same  residuary  or  net  moneys,  as  and  when  the 

inc9me       same  shall  be  received,  in  the  names,  &c.  {trust  for  investment,  power 

joinTuves.  to  vary.  Precedents  I.,  IL,  III.,  supra"] ;  {trusts  for  husband  and  wife 
and  the  survivor  for  their  lives.  Precedent  II.  p.  326,  supra] :  And 

Trusts  for    AFTER  the  death  of  the  survivor  of  the  said  [husband]  and  [wife] 

children  u     ./    j 

and  issue,  shall  Stand  possessed  of  the  said  trust  fund  in  trust  for  such  of 
the  children  of  the  intended  marriage  living  at  the  death  of  such 
survivor,  and  such  of  the  children  living  at  the  death  of  such 
survivor  of  any  child  of  the  intended  marriage  who  shall  then  be 

^  This  form  of  trust  for  the  issue  is  exceptionable,  and  not  to  be  recom- 
mended. 


342  SETTLEMENTS,  ETC.— PEECEDENTS 

dead,  as  being  male  shall  attain  the  age  of  twenty-one  years,  or 
being  female  shall  attain  that  age  or  marry,  and  if  more  than  one, 
as  tenants  in  common,  in  equal  shares,  but  so  that  the  children, 
being  objects  of  this  trust,  of  any  child  of  the  intended  marriage 
who  shall  have  died,  shall  take  equally  between  them  the  share 
only  which  their  parent  would  have  taken  if  living  [trusts  for 
maintenance,  accumulation,  and  advancement  extended  to  "  child  or 
grandchild  of  the  intended  marriage,"  Precedent  I.  p.  321,  supi'a']  : 
Ultimate  And  IT  IS  HEREBY  AGREED  that  if  there  shall  be  no  child  or 
grandchild  of  the  intended  marriage  who  shall  attain  a  vested 
interest  under  the  trusts  hereinbefore  declared,  then  subject  to  the 
trusts,  powers,  and  provisions  hereinbefore  contained  and  declared, 
and  to  every  exercise  of  such  respective  powers,  the  trustees  shall 
stand  possessed  of  the  trust  fund  for  the  said  [husband]  absolutely. 
Declaration  And  IT  IS  HEREBY  AGREED  ^  that  the  Said  trustees  shall  pay 
rents  tiu  and  apply  the  net  rents  and  profits  of  the  said  hereditaments 
and  premises  assured  by  the  hereinbefore  recited  indenture  of 
even  date  herewith  [the  conveyance  in  trust  for  sale],  until  the  same 
shall  be  sold  or  of  the  unsold  part  thereof  for  the  time  being  to 
the  person  or  persons  and  for  the  purposes  to  whom  and  for  which 
the  income  of  the  investments  hereinbefore  directed  to  be  made 
of  the  net  moneys  to  arise  from  the  sale  thereof  would  be  payable 
or  applicable  under  the  trusts  hereinbefore  contained  if  such  sale 
Clause  and  investment  were  actually  made.  And  it  is  hereby  agreed 
ment^to  that  in  addition  to  the  ordinary  indemnity  given  by  law  to 
provisions  trustccs,  the  Said  trustees  or  trustee  may  lend  on  the  security 
demnityof  °^  ^^Y  hereditaments  with  less  than  a  marketable  title,  without 
trastees.  being  liable  for  any  loss  occasioned  thereby.  Add  if  buildings 
are  or  may  become  included  in  the  settled  p'operty,  **  And  the  said 
trustees  or  trustee  shall  not  be  bound  to  see  to  the  repair  or 
insurance  against  loss  or  damage  by  fire  of  any  buildings  which 
may  for  the  time  being  be  subject  to  the  trusts  of  these  presents, 
or  be  responsible  for  any  loss  which  may  be  occasioned  by  any 
failure  to  repair  or  insure  the  said  buildings  or  any  of  them,  and 
further  in  the  event  of  any  hereditaments  subject  to  rent-charges, 
rents,  or  other  charges  or  to  covenants  or  conditions  being  subject 
to  the  trusts  of  these  presents,  the  said  trustees  or  trustee  shall  be 
entitled  to  be  indemnified  to  the  fullest  extent  out  of  the  trust  estate 
for  the  time  being  subject  to  the  trusts  of  these  presents  and  the 
rents  and  income  thereof  in  respect  of  any  liability  incurred  by 
them  or  him  to  the  payment  of  such  rents  and  charges  and  the 
performance  of  such  covenants  and  conditions  or  under  any  covenants 
entered  into  by  the  said  trustees  or  trustee  on  the  purchase  of  the 
premises  or  otherwise  in  relation  thereto."  [Clauses  as  to  appointment 
and  indemnity  of  trustees  and  employment  of  agents,  Precedent  I.  p.  324, 
supra."] 

In  witness,  &c. 

1  See  Hope  v.  dJHedouville,  [1893]  2  Ch.  361. 


SETTLEMENTS,  ETC.— PRECEDENTS 


343 


Parties. 


Testatum. 


Grant  of 
freehold 
parcels. 


Kabendum. 

To  trustees 
to  use  of 
husband 
till 
marriage. 

Limitation 
of  rent- 
charge  by 
way  of  pm- 
money. 


XL  SETTLEMENT  on  Marriage  of  Freeholds  and  Copyhoij)s 
belonging  to  the  intended  Husband;  Limitation  of  Rent-charge 
by  way  of  Pin-money  to  the  intended  Wife;  and  subject  thereto 
Limitation  of  Lands  to  the  use  of  the  Husband  for  Life,  with 
Remainder  to  the  use  that  the  Wife  may  receive  a  Jointure,  and 
subject  thereto  to  Trustees  for  500  years  to  secure  Portions  fm' 
Younger  Children,  with  Remainder  to  the  use  of  the  first  and  other 
Sons  of  the  Marriage  successively  in  Tail  Male,  Remainder  to  the 
Husband  in  Fee.  Trusts  of  Term  for  securing  Portions.  Powers 
of  Jointuring  and  Charging  Portions.  Trusts  of  Copyholds  to 
correspond  with  Uses  of  Freeholds.  Settlement  of  Chattels  as 
Heirloom.^. 

THIS  INDENTURE,  made  the  day  of  19     , 

Between  [intended  husband],  of,  &c.,  of  the  first  part;  [intended 
wife\  of,  &c.,  of  the  second  part ;  and  [trustee'],  of,  &c.  [trustee], 
of,  &c.,  and  [trustee],  of,  &c.,  of  the  third  part :  i  WITNESSETH 
that,  in  pursuance  of  an  agreement  entered  into  upon  the  treaty 
for  a  marriage  which  is  intended  shortly  to  be  solemnised  between 
the  said  [husband]  and  [t^i/e],  and  in  consideration  of  such  intended 
marriage,  the  said  [husband]  with  the  approbation  of  the  said  [wife], 
hereby  grants,  and  as  settlor  conveys  unto  the  said  [trustees]  and 
their  heirs,  All  that  mansion  known  as  Hall,  together 

with  the  outbuildings,  gardens,  pleasure-grounds,  park,  and  de- 
mesne, and  other  lands  usually  occupied  therewith.  And  all  and 
singular  the  manors  or  reputed  manors,  messuages  and  other 
buildings,  farms,  lands,  and  hereditaments,  corporeal  and  in- 
corporeal, described  in  the  first  schedule  hereunder  written,  And 
also  all  other  (if  any)  the  freehold  messuages,  lands,  tithe  rent- 
charges  and  hereditaments  of  every  description  of  the  said  [husband] 
situate  in  or  arising  out  of  the  respective  parishes  of  and 

in  the  county  of  ,  To  hold  the  premises  here- 

inbefore expressed  to  be  hereby  granted  unto  the  said  [trustees]  and 
their  heirs.  To  the  use  of  the  said  [husband],  his  heirs  and  assigns, 
until  the  said  intended  marriage,  and  after  the  solemnisation  thereof 
To  the  use  that  the  said  [wife]  shall  during  the  now  intended 
coverture  receive  by  way  of  pin-money  the  yearly  sum  of  £  , 

to  be  charged  upon  and  issuing  out  of  the  hereditaments  and  pre- 
mises hereby  granted,  to  commence  from  the  day  of  the  solemnisation 
of  the  said  intended  marriage,  and  to  be  considered  as  accruing  from 
day  to  day,  but  to  be  paid  without  any  deduction  by  equal  quarterly 
payments,  on  the  usual  quarter  days,  the  first  payment  to  be  made 
on  such  of  the  said  days  as  shall  happen  next  after  the  said  intended 
marriage,  but  so  that  she  shall  not  have  power  to  anticipate  such 
yearly  sum  or  any  part  thereof  ;  And  subject  thereto,  TO  the  use  of 
the  said  [husband]  and  his  assigns  during  his  life  without  impeach- 

1  When  the  intended  husband  is  absolute  owner  in  fee  there  is  no 
necessity  for  recitals.  For  recitals  of  settlements  on  subsequent  dealings 
with  land  which  is  subject  thereto,  see  tit.  Recitals  and  Precedents. 


344 


SETTLEMENTS,  ETC.— PRECEDENTS 


Renuunder 

to  use 
that  wile 
shall 
receive  a 
jointure. 

Remainder 
to  use  of 
husband 
for  life. 


Remainder 
to  use  of 
trustees 
for  500 
years. 


Remainder 
to  use  of 
first  and 
other  sons 
of  the 
marriage 
in  tail- 
male. 

Remainder 
to  use  of 
husband 
in  fee. 

Trust  of 
term  of 
500  years 
for  raising 
portions. 


ment  of  waste ;  With  remainder  TO  the  use  that  the  said  [wife]  (if 
she  shall  survive  the  said  [husbaiid]  shall  thenceforth  during  her  life 
receive  the  yearly  rent-charge  of  £  for  her  jointure  and  in 

bar  of  dower  and  freebench,  to  be  charged  upon  and  issuing  out  of 
the  said  hereditaments  and  premises  hereby  granted,  to  commence 
from  the  day  of  the  death  of  the  said  [husband],  and  to  be  considered 
as  accruing  from  day  to  day,  but  to  be  paid  without  any  deduction 
by  equal  half-yearly  payments  on  the  25th  day  of  March  and  the 
29th  day  of  September  in  every  year,  the  first  of  such  payments  to 
be  made  on  such  of  the  said  days  as  shall  first  happen  after  the 
death  of  the  said  [husband],  and  in  proportion  to  the  period  which 
shall  then  have  elapsed,  if  the  said  [wife]  shall  then  be  living,  or  if 
not  a  proportioned  part  to  be  paid  at  her  death ;  And  subject  as 
aforesaid  To  the  use  of  the  said  [trustees]  for  the  term  of  500  years 
from  the  death  of  the  said  [husband]  without  impeachment  of  waste, 
Upon  the  trusts  and  with  and  subject  to  the  powers  and  provisions 
hereinafter  contained  concerning  the  same ;  And  subject  as  afore- 
said, To  THE  USE  of  the  first  and  other  sons  of  the  said  [husband]  by 
the  said  [wife]  successively  according  to  seniority,  and  the  heirs  male 
of  their  respective  bodies ;  With  remainder  To  the  use  of  the  said 
[husband],  his  heirs  and  assigns  :  And  it  is  hereby  agreed  and 
declared  that  the  said  hereditaments  and  premises  hereby  granted 
are  hereby  limited  to  the  use  of  the  said  [trustees]  for  the  said  term 
of  500  years.  Upon  trust  that,  if  there  shall  be  any  younger  child 
or  children  of  the  said  intended  marriage  (that  is  to  say,  any  child  or 
children  other  than  an  eldest  or  only  son,  or  any  other  son  or  sons, 
who,  before  his  or  their  respectively  attaining  the  age  of  twenty-one 
years,  shall  become  entitled  either  in  possession  or  remainder,  under 
or  by  virtue  of  these  presents  to  the  said  hereditaments  and  premises 
for  the  first  estate  in  tai-lmale)  who  being  a  son  or  sons  shall  attain 
the  age  of  twenty-one  years,  or  being  a  daughter  or  daughters  shall 
attain  that  age  or  marry,  then  the  said  [trustees]  and  the  survivors  or 
survivor  of  them,  or  the  executors  or  administrators  of  such  survivor, 
or  other  the  trustees  or  trustee  for  the  time  being  of  these  presents 
(hereinafter  called  "  the  said  trustees  or  trustee  ")  shall  after  the 
death  of  the  said  [husband],  or  in  his  lifetime  with  his  consent  in 
writing,  by  mortgage  of  the  premises  comprised  in  the  said  term  of 
500  years,  or  any  part  thereof,  for  all  or  any  part  of  the  same  term, 
or  by  or  out  of  the  rents  and  profits  of  the  same  premises,  or  any 
part  thereof,  or  by  sale  of  any  timber  or  minerals,  or  by  all  or  any 
of  such  means,  or  by  any  other  reasonable  means,  raise  for  the 
portion  or  portions  of  such  younger  child  or  children  as  aforesaid 
such  sum  of  money  as  is  hereinafter  mentioned,  (that  is  to  say)  If 
there  shall  be  but  one  such  younger  child  the  sum  of  £  ; 

And  if  there  shall  be  but  two  such  younger  children  the  sum  of 
£  ;  And  if  there  shall  be  three  or  more  such  younger 

children  the  sum  of  £  ;  the  said  sum  of  £  , 

£  ,  or  £  as  the  event  may  happen,  to  be  vested 

in  and  paid  to  such  child,  or  to  all  or  such  one  or  more  exclusively 


SETTLEMENTS,  ETC.— PRECEDENTS 


345 


Hotchpot 
clause. 


Trusts 
for  main- 
tenance. 


Trust  for 
advance- 
ment of 
younger 
children. 


of  the  other  or  others  of  the  said  younger  children  ^  at  such  age  or 
time,  or  respective  ages  or  times  (not  previous  as  to  a  male  to  his 
attaining  the  age  of  twenty-one  years,  or  as  to  a  female  to  her 
attaining  that  age  or  marrying),  if  more  than  one,  in  such  shares, 
and  with  such  future,  executory,  or  other  trusts  for  the  benefit  of 
any  such  child  or  children, ^  with  such  provisions  for  their  or  any  of 
their  maintenance,  education,  and  advancement,  upon  such  conditions, 
and  generally  in  such  manner  as  the  said  [husband]  shall,  by  any  deed 
or  deeds,  revocable  or  irrevocable,  or  by  will  or  codicil  appoint ; 
And  in  default  of  such  appointment,  and  so  far  as  no  such  appoint- 
ment shall  extend,  to  be  paid  to  or  divided  between  or  among  the 
said  younger  child  or  children,^  if  more  than  one,  in  equal  shares,  to 
be  paid  to  him,  her,  or  them  respectively,  being  a  male  or  males,  on 
attaining  twenty-one  years,  and  being  a  female  or  females  on  attain- 
ing that  age  or  marriage,  if  the  same  respectively  shall  happen  after 
the  death  of  the  said  [hiisband],  but  if  the  same  respectively  shall 
happen  during  his  life,  then  immediately  after  his  death  ;  Provided 
ALWAYS,  and  it  is  hereby  agreed  and  declared  that,  in  default  of 
appointment  to  the  contrary,  no  child  who  ^  shall  take  any  part  of 
the  said  sum  of  £  ,  or  £  (as  the  case  may  be)  under 

or  by  virtue  of  an  appointment  made  under  the  power  hereinbefore 
contained,  shall  be  entitled  to  participate  in  the  unappointed  part  of 
the  same  sum  without  bringing  the  part  appointed  to  him  or  her  * 
into  hotchpot  and  accounting  for  the  same  accordingly ;  And  it  is 
hereby  further  agreed  and  declared  that  the  said  trustees  or  trustee 
shall,  after  the  death  of  the  said  [husband],  by  any  such  means  as 
aforesaid,  raise  for  the  maintenance  and  education  of  the  said  younger 
child  or  children, ^  such  yearly  sum  or  sums  (not  exceeding  what  the 
interest  of  the  then  expectant  or  presumptive  portion  or  portions  in- 
tended to  be  hereby  provided  for  such  child  or  children  would  amount 
to  at  the  rate  of  4  per  cent,  per  annum)  as  the  said  [husband]  shall  by 
any  deed  or  deeds,  revocable  or  irrevocable,  or  by  will  or  codicil  ap- 
point, and  in  default  of  appointment  and  so  far  as  no  such  appoint- 
ment shall  extend  as  the  said  trustees  or  trustee  shall  think  fit,  and 
shall  apply  the  yearly  sum  or  sums  so  raised  accordingly  ;  And  it  is 
hereby  declared  that  the  said  trustees  or  trustee  may  either  them- 
selves or  himself  so  pay  and  apply  the  same,  or  may  pay  the  same  to 
the  guardian  or  guardians  of  such  child  *  for  the  purposes  aforesaid, 
without  seeing  to  the  application  thereof ;  And  upon  further  trust 
that  it  shall  be  lawful  for  the  said  trustees  or  trustee,  at  any  time  or 
times  after  the  death  of  the  said  [husband],  or  in  his  lifetime  with  his 
consent  in  writing,  to  raise  by  the  means  aforesaid,  or  any  of  them. 


1  If  desired,  this  provision  may  be  extended  to  remoter  issue,  thus  : — 
"or  the  issue  of  any  such  child  or  children,  such  issue  to  be  born  and 
take  vested  interests  within  twenty-one  years  after  the  death  of  the 
said  [husband]." 

2  "  Or  remoter  issue." 

3  "  Or  whose  issue." 

*  "  Or  to  his  or  her  issue.' 
6  "  Or  remoter  issue." 


346 


SETTLEMENTS,  ETC.— PEECEDENTS 


Power  for 
the  hus- 
band to 
require 
portions  to 
be  raised 
in  his 
lifetime. 


for  the  advancement  of  any  such  younger  child  or  children,^  any  sum 
or  sums  of  money  not  exceeding  in  the  whole  for  any  such  child  or 
children  ^  one  moiety  of  his,  her,  or  their  then  expectant  or  presump- 
tive portion  or  portions,  whether  under  any  appointment  or  in  default 
of  appointment;  and  which  sum  or  sums  shall  be  considered  as  part 
of  the  portion  or  portions  provided  for  such  younger  child  or  children, ^ 
and  shall  pay  and  apply  the  same  for  his,  her,  or  their  preferment  and 
advancement,  or  benefit  [including,  &c..  Precedent  I.  p.  321,  supra], 
in  such  manner  as  the  said  [husband]  shall  direct,  and  in  default  of 
and  subject  to  such  direction,  as  the  said  trustees  or  trustee  shall 
in  their  or  his  discretion  think  fit :  Provided  always,  that  it  shall 
be  lawful  for  the  said  [husband]  by  deed  to  require  the  said  trustees 
or  trustee  at  any  time  or  times,  to  raise,  by  the  ways  and  means 
aforesaid,  the  whole  or  any  part  or  parts  of  the  portion  or  portions 
to  which,  by  appointment  or  otherwise,  any  child  or  children  ^  of  the 
intended  marriage  shall  for  the  time  being  be  entitled  for  a  vested 
interest  or  vested  interests,  and  to  pay  such  portion  or  portions,  or 
the  part  or  parts  thereof  required  to  be  raised  as  aforesaid,  to  the 
child  or  children  ^  entitled  thereto,  or  to  any  person  or  persons 
claiming  through  or  in  right  of  him,  her,  or  them  ;  and  that  the 
said  trustees  or  trustee  shall  in  all  respects  comply  with  every  such 
request,  and  every  such  deed  shall,  if  there  shall  be  two  or  more 
younger  children  ^  of  the  intended  marriage,  and  if  it  shall  in  other 
respects   be  necessary,   operate  as  an  execution  of  the  power  of 
appointment  between  or  among  such  children  ^  hereinbefore  con- 
tained ;  Provided  also,  that  in  case  of  the  said  [husband]  so  as 
aforesaid  requiring  the  whole  or  any  part  or  parts  of  any  portion 
or  portions  to  be  raised,  it  shall  be  lawful  for  the  said  trustees  or 
trustee,  instead  of  actually  raising  the  same,  to  assign  or  demise  the 
premises,  or  any  part  or  parts  thereof,  to  the  person  or  persons  to 
whom  the  same  shall  be  directed  to  be  paid,  or  as  he,  she,  or  they 
shall  direct,  by  way  of  mortgage  for  securing  the  sura  or  sums 
required  to  be  raised,  with  interest  for  the  same  at  such  rate  as  shall 
Power  for    be  in  such  assignment  or  demise  mentioned ;  Provided  always, 
h^ttaterm  that,  if  it  shall  be  desired,  during  the  lifetime  of  the  said  [husbarid], 
effecUn  the  to  raise  any  sum  of  money  under  the  trusts  hereinbefore  declared  of 
husband  to  the  term  by  mortgage  of  all  or  any  part  of  the  premises  comprised 
portions       ^"  ^^^  Same  term,  then  and  in  every  such  case  it  shall  be  lawful  for 
raised  in      ^\^q  g^jfj  trustees  or  trustee  by  deed  to  appoint  the  premises  which 
shall  be  so  mortgaged  under  the  trusts  of  the  said  term,  for  the  term 
of  99  years,  to  commence  from  the  execution  of  the  deed  by  which 
this  present  power  shall  be  exercised,  if  the  said  [husband]  shall  so 
long  live,  without  impeachment  of  waste,  and  the  said  [husband]  shall, 
as  between  himself  and  the  persons  entitled  in  remainder  (but  without 
prejudice  to  the  rights  of  the  mortgagee  or  mortgagees)  be  bound  to 
keep  down  the  interest  accruing  during  his  life  upon  any  money  so 
raised  in  his  lifetime  :  Provided  always,  that,  subject  to  the  trusts 
hereinbefore  declared,  and  to  the  right  of  the  said  trustees  or  trustee 


Power  for 
trustees  to 
create 
specific 
securities. 


Surplus 
rents  to  be 
taken  by 
reversioner. 


^  "  Or  remoter  issue." 


SETTLEMENTS,  ETC.— PEECEDENTS 


347 


Power  to 
husband  to 
jointure 
any  future 
vriife. 


Power  to 
charge 
estates  with 
portions  fi)r 
chDdren  of . 
a  subse- 
quent 
man-iage.2 


by  the  ways  and  means  aforesaid,  to  raise  and  reimburse  themselves 
or  himself  all  costs  and  expenses  incurred  in  relation  to  the  trusts 
aforesaid,  the  rents  and  profits  of  the  premises  comprised  in  the  term 
of  500  years,  or  so  much  of  the  same  rents  and  profits  as  shall  from 
time  to  time  remain  after  answering  the  trusts  aforesaid,  shall  be 
received  by  the  person  or  persons  for  the  time  being  entitled  to  the 
same  premises  in  reversion  expectant  upon  the  same  term  :  Provided 
ALWAYS,  AND  IT  IS  HEREBY  AGREED  AND  DECLARED,  that  it  shall  be 
lawful  for  the  said  [hushaiid]  if  he  shall  marry  again  subsequently  to 
the  said  now  intended  marriage  ^  by  deed  revocable  or  irrevocable,  or 
by  will  or  codicil,  to  appoint  to  any  and  every  woman  whom  he  may 
so  subsequently  marry  (and  that  either  before  or  after  any  and  every 
such  marriage),  for  her  life,  or  for  any  less  period  by  way  of  jointure, 
any  yearly  rent-charge  or  yearly  rent-charges,  not  exceeding  in  the 
whole  by  the  year  the  sum  of  £  ,  free  from  all  deductions,  to 

be  charged  upon  all  or  any  of  the  said  hereditaments  and  premises 
hereby  granted  and  to  be  paid  at  such  times  and  in  such  manner  as 
he  shall  direct ;  and  this  power  of  jointuring  may  be  exercised  as 
often  as  the  said  [husband]  shall  marry  :  Provided  also,  and  it  is 

HEREBY  further  AGREED  AND  DECLARED,  that  it  shall  be  lawful  for 
the  said  [husband]  if  he  shall  marry  again  subsequently  to  the  said 
now  intended  marriage  at  any  time  or  times  by  deed  revocable  or 
irrevocable,  or  by  will  or  codicil,  to  charge  all  or  any  of  the  said 
hereditaments  and  premises  hereby  settled  with  the  payment  of  such 
sum  or  sums  of  money  as  be  shall  think  fit,  not  exceeding  in  the 
whole  in  the  several  events  hereinafter  specified  the  several  sums 
hereinafter  mentioned,  as  and  for  the  portion  or  portions  of  every  or 
any  of  his  younger  child  or  children  by  any  such  after-taken  wife 
(that  is  to  say,  &c.,  as  in  brackets,  ut  ante,  p.  344)  who  being  a  son  or 
sons  shall  attain  the  age  of  twenty-one  years,  or  being  daughters  or  a 
daughter  shall  attain  that  age  or  marry,  that  is  to  say,  if  there  shall 
be  only  one  such  child  the  sum  of  £  ,  and  if  there  be  only  two 

such  children  the  sum  of  £  ,  and  if  there  shall  be  three  or  more 

such  children  the  sum  of  £  ,  such  portion  or  portions  to  be 

an  interest  or  interests  vested  in  and  to  be  paid  to  or  divided  between 
or  among  such  child  or  children  or  any  one  or  more  of  them,  at  such 
age  or  time,  or  respective  ages  or  times  (not  previous  as  to  a  son  to 
his  attaining  the  age  of  twenty-one  years,  or  as  to  a  daughter  to  her 
attaining  that  age  or  marrying),  and  with  such  provisions  for  main- 
tenance and  advancement  in  the  meantime,  and,  if  more  than  one 
in  such  shares  and  proportions  and  with  such  annual  sum  or  sums 
of  money,  conditions,  restrictions,  and  limitations  over  (such  annual 
sum  or  sums  of  money  and  limitations  over  being  for  the  benefit 
of  one  or  more  such  child  or  children  respectively)  as  the  said 
[husband]  shall  in  manner  aforesaid  direct :  And  by  the  same  or  any 


*  It  is  better  not  to  say  "  if  he  shall  survive  the  said  [loife]  and  marry 
again,"  as  if  these  words  are  nsed  the  power  would  not  be  exercisable  on 
a  re-marriage  after  a  divorce. 

2  If  desired,  this  power  may  be  extended  so  as  to  include  remoter  issue, 
vide  supra. 


348 


SETTLEMENTS,  ETC.— PRECEDENTS 


Power  to     other  deed,  or  by  will  or  codicil,  to  charge  the  hereditaments  charged 
yearly  sums  with  such  portion  or  portions  respectively  with  the  payment  of  such 
tenance?      yearly  sum  or  sums  of  money  as  he  shall  think  fit,  for  or  towards 
dni'drenT^  the  maintenance  and  education  of  the  child  or  children  presumptively 
entitled  to  any  portion  or  portions  under  the  power  of  charging  the 
same  hereinbefore  contained,  until  her,  his  or  their  portion  or  respec- 
tive portions  shall  become  vested  and  payable,  so  as  the  same  do  not 
exceed  the  interest  of  such  his,  her,  or  their  portion  or  respective 
portions  or  presumptive  or  expectant  portion  or  respective  portions 
to  charge     after  the  rate  of  4  per  centum  per  annum ;  And  also  by  the  same  or 
for  advance- any  Other  deed,  or  by  will,  or  codicil,  to  charge  all  or  any  of  the 
ment  of       hereditaments  and  premises  hereby  settled  with  any  sum  or  sums  of 
children;     money,  not  exceeding  in  the  whole  for  any  such  younger  child  or 
children  by  any  such  after-taken  wife  as  aforesaid  one  moiety  of  his, 
her,  or  their  the  expectant  or  presumptive  portion  or  portions,  and 
which  sum  or  sums  shall  be  considered  as  part  of  the  portion  or 
portions  provided  for  such  child  or  children,  to  be  raised  for  the 
advancement  [including,  &c..  Precedent  I.  p.  321,  mpra]  or  benefit  of 
such  child  or  children,  and  to  be  applied  for  that  purpose  in  such 
manner  as  the  said  [husband]  shall  direct,  and  in  default  of  such 
direction,  as  the  said  trustees  or  trustee  shall  in  their  or  his  discre- 
tion think  fit ;  And  by  the  same  or  any  other  deed,  or  by  will  or 
codicil,  to  appoint  for  any  term  or  terms  of  years,  to  any  person  or 
persons  with  or  without  impeachment  of  waste,  the  said  heredita- 
ments so  to  be  charged  as  aforesaid  upon  the  usual  trusts,  for  securing, 
raising,  and  paying  such  portion  or  respective  portions,  and  the  costs 
of  and  incident  to  raising  the  same  and  the  execution  of  the  trusts 
thereof :  Provided  always,  and  it  is  hereby  agreed  and  declared, 
that  if  any  person  who  would,  if  of  full  age,  be  entitled  to  the  pos- 
session or  receipt  of  the  rents  and  profits  of  the  said  hereditaments 
and  premises  hereby  granted  shall  die  under  the  age  of  twenty-one 
years,  then  the  said  trustees  or  trustee  shall  stand  possessed  of  the 
rents  and  profits  of  the  same  hereditaments  received  by  them  during 
the  minority  of  the  person  so  dying,  and  all  accumulations  and 
investments  thereof,  or  so  much  thereof  as  shall  not  have  been 
applied  under  any  statutory  power,  and  invest  and  apply  the  same 
as  if  the  same  were  capital  moneys  arising  under  the  Settled  Land 
Acts,  1882  to  1890,  from  the  same  premises,  but  liable  ultimately 
to  be  laid  out  in  the  purchase  of  real  estate  to  be  assured  and  settled 
to  the  uses,  upon  the  trusts,  and  with  and  subject  to  the  powers  and 
provisions  hereinbefore  limited  and  declared  concerning  the  said 
hereditaments  and  premises  hereby  granted,  but  not  so  as  to  increase 
or  multiply  charges  or  powers  of  charging :  AND  THIS  INDEN- 
TURE ALSO  WITNESSETH,  that  for  the  consideration  aforesaid, 
Covenant  to  the  Said  [husband]  hereby  covenants  with  the  said  [trustees]  that,  in 
copyholds;   case  the  marriage  shall  be  solemnised,  he  will  forthwith,  at  his  own 
cost,  surrender  into  the  hands  of  the  lord  of  the  manor  of  , 

in  the  county  of  ,  All  those  copyhold  messuages  and  other 

buildings,  farms,  lands,  and  hereditaments  described  in  the  second 
schedule  hereunder  written,  and  all  other  if  any  the  copyhold  here- 


to limit 

terms  for 
securing 
portions. 


Proviso  as 
to  destina- 
ti>  'U  of 
accumula- 
tions of 
rents  and 
profits. 


Second 
testatum, 


SETTLEMENTS,  ETC.— PEECEDENTS 


349 


till  sur- 
render. 


Third 
tentatwn. 


ditameuts  of  every  description  of  the  said  [husband]  situate  in  the 
respective  parishes  of  and  aforesaid,  And  he  hereby 

as  settlor  conveys  all  such  copyhold  hereditaments  and  premises,  TO 
THE  USE  of  the  said  [trustees],  and  their  heirs,  according  to  the 
custom  of  the  manor  of  ,  at  and  under  the  customary  fines, 

on  trusts  to  rents,  suits,  and  services,  Upon  SUCH  trusts,  and  with,  under,  and 
withus^ of  subject  to  such  powers,  provisions,   and  declarations,  as  shall  as 
freeholds,     jjg^rly  correspond  with    the    uses,   trusts,   powers  and  provisions 
hereinbefore  limited,  concerning  the  said  hereditaments  and  premises 
hereby  granted,  as  the  different  qualities  of  the  estates,  and  the  rules 
of  equity  will  permit,  but  not  so  as  to  increase  or  multiply  charges 
Declaration  or  powers  of  charging ;  And  the  said  [husband]  hereby  declares,  that 
copyhoWs^  until  the  same  premises  shall  be  surrendered  in  pursuance  of  this 
covenant,  he  the  said  [hmband]  will  stand  seised  of  the  same  premises 
in  trust  for  the  said  [ti-ustees]  and  their  heirs,  UPON  SUCH  TRUSTS 
and  with  and  subject  to  such  powers  and  provisions  as  the  same 
would  be  subject  to  if  the  same  had  been  so  surrendered  as  afore- 
said :  AND  THIS  INDENTURE  ALSO  WITNESSETH,  that  for 
the  consideration  aforesaid,  the  said  [husbaiul]  hereby  assigns  and 
Assignment  as  Settlor  convcys  unto  the  said  [trustees],  All  and  singular  the 
piateT&c!     jewels,  plate,  furniture,  pictures,  statues,  and  other  works  of  art, 
books,  and  other  articles  of  domestic  use  and  ornament  now  in  or 
Habendum,  about  Hall,  aforesaid,  To  hold  the  same  unto  the  said 

To  trustees  [trustees],  their  executors,  administrators,  and  assigns  UPON  TRUST  to 
permit  the  same  to  be  held  and  enjoyed  as  heirlooms  by  the  person 
or  persons  for  the  time  being  entitled  to  the  hereditaments  hereby 
settled  under  the  uses  and  limitations  hereinbefore  declared  as  nearly 
as  the  rules  of  law  and  equity  will  permit,  but  not  so  as  to  increase 
or  multiply  charges  or  powers  of  charging  and  so  that  the  said  heir- 
looms shall  not  vest  absolutely  in  any  person  hereby  made  tenant  in 
tail  by  purchase  of  the  hereditaments  hereby  settled,  unless  he  or 
she  shall  attain  the  age  of  twenty-one  years,  but  on  the  death  of 
such  tenant  in  tail  under  that  age,  shall  go  to  the  person  or  persons 
who  shall  thereupon  become  entitled  to  the  same  hereditaments, 
under  the  uses  and  limitations  hereinbefore  declared :  Provided 
ALWAYS,  that  as  soon  as  conveniently  may  be,  after  the  execution 
of  these  presents,  an  inventory  shall  be  taken  of  the  jewels,  plate, 
and  other  articles  hereinbefore  assigned  as  heirlooms,  and  such 
inventory  (to  be  revised  as  occasion  shall  require)  shall  be  signed  by 
the  person  for  the  time  being  entitled  to  the  use  of  the  heirlooms 
and  also  by  the  said  trustees  or  trustee  :  Provided  also,  that  the 
said  heirlooms  shall  at  all  times  be  kept  in  good  preservation,  and 
adequately  insured  against  loss  or  damage  by  fire  by  the  person  for 
the  time  being  entitled  to  the  enjoyment  thereof,  but  it  is  hereby 
expressly  agreed  and  declared  that  the  said  trustees  or  trustee  shall 
not  be  bound  to  see  to  the  preservation  or  insurance  of  the  said 
heirlooms,  or  be  responsible  for  any  loss  or  injury  which  may  happen 
thereto,  but  the  said  trustees  or  trustee  shall  not  be  precluded  from 
interfering  for  the  protection  thereof  when  and  if  he  or  they  shall 


upon  trust 
as  heir- 
looms. 


An  inven- 
tory to  be 
taken. 


trustees. 


350  SETTLEMENTS,  ETC.— PEECEDENTS 

Appoint-      think  fit :  PROVIDED  ALWAYS,  and  it  is  hereby  agreed  and  declared 

mentof  ,11,1 

trustees  for  that  the  Said  trustees  or  trustee  shall  be  the  trustees  or  trustee  of 
Settled  the  settlement  hereby  created  for  all  the  purposes  of  the  Settled 
and  of  '  Land  Acts,  1882  to  1890,  and  of  any  other  Act  or  Acts  for  the  time 
ancinei'&c.,  being  relating  to  settled  lands,  and  also  for  the  purposes  of  sec.  42 
Aa^i88i,  q£  j.jjg  Conveyancing  and  Law  of  Property  Act,  1881 ;  Provided 
Power  to  ALWAYS  that  the  statutory  power  of  appointing  a  new  trustee  or 
new°'°  new  trustees  of  these  presents  when  and  so  often  as  a  vacancy  shall 
occur  shall  be  vested  in  the  said  [husband]  during  his  life,  and  after 
his  death  in  the  person,  if  of  full  age,  and  otherwise  competent,  for 
the  time  being  seised  of  or  entitled  in  possession  to  the  said  here- 
ditaments or  the  receipt  of  the  rents  and  profits  thereof,  and  if  there 
shall  be  no  such  person,  then  by  the  person  or  persons  in  whom  such 
power  is  vested  by  statute  [trustee  clauses,  Precedent  I.  supra]. 
In  witness,  &c. 

The  First  Schedule  above  referred  to. 

The  Second  Schedule  above  referred  to. 


XIL  SETTLEMENT  on  Marriage  of  Freeholds  and  of  a  Lease- 
hold House  in  Town  belonging  to  the  intended  Wife.  Limita- 
tion of  lands  to  Trustees  fon-  a  Term  of  99  Years  during  the 
intended  Husband's  Life  to  secure  a  Rent-cliarge  to  the  Wife,  and 
subject  thereto  to  the  Husband  for  Life,  with  Remainder  to  the 
use  of  the  Wife  for  Life,  with  Remainder  to  Trustees  to  secure 
Portions,  with  Remainder  to  the  use  of  the  first  and  other  Sons  in 
Tail-Male  and  in  Tail,  with  Remainder  to  the  use  of  the  Daughters 
as  Tenants  in  Common  in  Tail  with  Cross  Remainders,  Remainder 
to  the  Wife  in  Fee.  Trusts  of  Terms  for  securing  Rent-charge  and 
Portions.  Provisions  extending  the  Powers  and  Provisions  of  the 
Settled  Land  Acts.  Trusts  of  Leaseholds  to  correspond  with  Uses 
of  Freeholds. 

THIS  INDENTURE,  made  the  day  of  19     , 

Parties.        BETWEEN  [intended  wife],  of,  &c.,  of  the  first  part ;  [intended  husband], 

of,  &c.,  of  the  second  part ;  [general  tmstee],  of,  &c.,  [general  trustee], 

of,  &c.,  and  [general  trustee],  of  &c.,  of  the  third  part;  And  [trustee 

Eecitais:     of  terms]  and  [trustee  of  terms],  of,  &c.,  of  the  fourth  part.     Whereas 

of  intended  g^  marriage  is  intended  shortly  to  be  solemnised  between  the  said 

marnage;  o  •' 

of  wife's  [husband]  and  [wife] ;  And  whereas  the  said  [wife]  is  seised  of,  or 
freeholds-  entitled  to  the  several  messuages,  lands,  and  hereditaments  par- 
ticularly described  in  the  schedule  hereunder  written  for  an  estate 
of  inheritance  in  fee  simple  in  possession  free  from  incumbrances ; 
ofjeaseof  And  WHEREAS  by  an  indenture  of  lease  dated,  &c.,  and  made 
between  [parties],  all  that  messuage  or  dwelling-house,  &c.  [describe 
parcels  from  lease],  were  demised  to  the  said  [original  lessee],  his 
executors,  administrators,  and  assigns,  from  the  day  of 

19     ,  for  the  term  of  years,  at  a  yearly  rent  of  £  ,  and 

subject  to  the  lessee's  covenants  and  conditions  contained  in  the 


town-house ; , 


SETTLEMENTS,  ETC.— PEECEDENTS  351 

of  mesne  same  indenture  of  lease;  And  whereas  by  divers  mesne  assign- 
ment, ments  and  acts  in  the  law  and  ultimately  by  an  indenture  dated, 
tWetoie^6-&c.,  and  made  between  [parties],  all  the  premises  comprised  in  the 
hold  house ;  hereinbefore  recited  indenture  of  lease  have  become  and  are  now 

vested  in  the  said  [wife]  for  the  residue  of  the  said  term  of 

of  agree-      years ;  And  whereas  upon  the  treaty  for  the  said  intended  marriage 

StSement  it  was  agreed  that  the  said  freehold  and  leasehold  hereditaments  and 

premises  respectively  should  be  assured  and  settled  in  manner  here- 

Stum.      inafter  appearing:    NOW  THIS   INDENTURE  WITNESSETH 

that  in  pursuance  of  the  said  agreement,  and  in  consideration  of  the 

said  intended  marriage,  the  said  [wife],  with  the  approbation  of  the 

said  [husband]  hereby  grants,  and  as  settlor  conveys  unto  the  said 

[general  trustees]  and  their  heirs,  all  those,  &c.  [freehold  parcels  by 

reference  to  schedule,  Precedent  XI.  p.  343,  supra,  mutatis  mutandis], 

Habendum.  To  HOLD  the  premises  hereinbefore  expressed  to  be  hereby  granted 

To  use  of     unto  the  said  [general  trustees]  and  their  heirs.  To  THE  USE  of  the 

marriage,     Said  [wi/e],  her  heirs  and  assigns,  until  the  said  intended  marriage : 

aiit«/^to^    And  after  the  solemnisation  thereof,  To  THE  USE  of  the  said  [trus- 

truste^of    fggg  QJ  terms]   for   the    term  of   99   years   thereafter  without   im- 

yearsto       peachmeut  of  waste,  upon  the  trusts  and  with  and  subject  to  the 

secure  renU  '^  iii-i-r  •       ■,  •  , 

charge;!  powers  and  declarations  hereinafter  contained  concerning  the  same; 
And  from  and  after  the  expiration  or  determination  of  the  said 
term  of  99  years,  and  in  the  meantime  subject  thereto  and  to 
Subject  the  trusts  thereof,  To  the  use  of  the  said  [general  trustees],  their 
^nMai^°  heirs  and  assigns,  during  the  life  of  the  said  [husband],  without 
durin^hus-  impeachment  of  waste,  Upon  trust  that  the  said  [general  trustees], 
upon  trust  ^^  ^^®  survivors  or  survivor  of  them,  or  the  executors  or  adminis- 
for  him  till  trators  of  such  survivor,  or  other  the  trustees  or  trustee,  for  the 

bankruptcy,  ' 

Ac.  time  being,  for  the  general  purposes  of  these  presents  (hereinafter 

called  "  the  said  trustees  or  trustee  of  this  settlement ")  shall  allow 
the  said  [husband]  to  enter  into  and  retain  possession,  and  receive 
the  rents  and  profits  of  the  same  hereditaments,  [without  impeach- 
ment of  waste],  during  his  life,  or  until  he  shall  become  a  bankrupt, 
or  do,  execute,  suffer,  or  concur  in  some  act,  deed,  matter,  or  thing 
(other  than  some  act,  deed,  matter,  or  thing  in  exercise  of  any 
power  hereby  conferred  on  him  for  or  incident  to  the  raising  of 
money  for  any  purpose  authorised  by,  or  by  virtue  of  these  presents) 
whereby,  or  by  reason  whereof  his  said  life  interest  would,  if 
absolutely  given  to  him,  vest  in,  belong  to,  or  be  charged  in  favour 
of  some  other  person  or  persons  :  And  in  the  event  of  the  failure  or 
determination  during  the  life  of  the  said  [husband]  of  the  trust  here- 
inbefore declared  in  his  favour,  the  said  trustees  or  trustee  of  this 
settlement  shall  immediately  upon,  and  from  and  after  such  failure 
or  determination,  enter  into,  and  during  the  remainder  of  the  life 

1  Where  the  arrangements  as  to  mode  of  settlement  are  as  in  this 
Precedent,  it  may  be  thought  well  to  limit  a  term  to  the  trustees  ab  initio 
to  secure  the  rent-charge.  But  having  regard  to  sec.  44  of  the  Con- 
veyancing and  Law  of  Property  Act,  1881,  all  that  is  necessary  is  to  limit 
the  lands  to  the  use  that  the  wife  shall  receive  a  jointure  (see  Precedent  XI. 
p.  344).  If  the  latter  course  is  adopted,  the  trusts  of  the  jointure  term 
{post)  will  of  course  be  omitted. 


352 


SETTLEMENTS,  ETC.— PEECEDENTS 


remainder 
to  wife  for 
life ; 


of  the  said  [husband],  retain  possession  of  the  said  hereditaments, 

manage  the  same  as  they  or  he  shall  think  proper,  in  like  manner 

as  if  they  or  he  were  the  absolute  owners  thereof  [or  in  like  manner 

as  if  they  or  he  were  the  trustees  or  trustee  appointed  to  manage 

and  superintend  the  management  of  land  to  the  possession  of  which 

an  infant  is  beneficially  entitled  under  sec.  42  of  the  Conveyanc- 

discretion-  iug  and  Law  of  Property  Act,  1881] :  And  it  is  hereby  agreed 

toappiy*"^    AND  DECLARED,  that  the  Said  trustees  or  trustee  of  this  settlement 

beneVt*of     shall,  during  the  remainder  of  the  life  of  the  said  [husband],  pay  or 

bankrupt,    apply  the  rents  and  profits  of  the  said  hereditaments  to  or  for  the 

destination  benefit  of  the  persons  or  person  who  under  the  limitations  herein- 

during"re-    ^fter   contained  would   be,  for   the   time  being,   next  entitled  in 

^fg'°^^f^°^.  remainder  to  the  same  rents  and  profits  if  the  said  [husband]  were 

for'ufe"*'**  then  actually  dead ;  or  may  allow  such  person  or  persons  to  enter 

into  and  retain  possession  of,  occupy,  manage,  and  enjoy  the  said 

hereditaments,  and  receive  the  rents  and  profits  thereof  during  the 

remainder  of  the  life  of  the  8a,id. [husband] ;  And  from  and  after  the 

death  of  the  said  [husband]  To  the  use  of  the  said  [wife]  during  her 

life,  but  so  that  she  shall  not  during  the  now  intended  coverture 

have  power  to  alien,  charge,  or  dispose  of  such  reversionary  life 

remainder    estate  by  Way  of  anticipation ;  And  from  and  after  the  death  of 

of  terms  for  the  survivor  of  them  the  said  [husband]  and  [tt'i/I?],  To  the  use 

to  secure     of  the  Said  [trustees  of  terms],  their  executors,  administrators,  and 

portions;     assigns,  for  the   term  of  500  years,  upon   the   trusts   hereinafter 

thereto  to    declared  Concerning  the  same;  And  from  and  after  the  expiration 

siveiy  in  tail  or  determination  of  the  same  term,  and  in  the  meantime  subject 

mae.an   I'^^jjgj.gt^Q  ^nd  to  the  trusts  thereof,  To  THE  USE  of  the  first  and  other 

sons  of  the  said  [toife]  by  the  said  [husband]  successively  according 

to  seniority,  and  the  heirs  male  of  their  respective  bodies ;  And  in 

default  of  such  issue.  To  the  use  of  the  same  first  and  other  sons 

successively  according  to  seniority,  and  the  heirs  of  their  respective 

bodies ;   And  in  default   of  such   issue.  To  the  use  of  all  the 

remainder  to  daughters  of  the  Said  [udfe]  by  the  said  [husband]  in  equal  shares, 

in  tail,  as     and  the  heirs  of  their  respective  bodies  as  tenants  in  common  in 

common,      equal  shares ;  ^  And  if,  and  so  often  as  there  should  be  a  failure  of 

remainders  issue  of  auy  such  daughter,  then  as  to  both  her  original  share,  and 

in  tail;        g^jg^  ^^^^  other  share  or  shares  in  the  said  hereditaments  as  by 

virtue  of  this  present  clause  shall  have  accrued  to  her  or  her  issue, 

To  THE  USE  of  the  others  of  such  daughters,  if  more  than  one,  and 

the  heirs  of  their  respective  bodies,  in  equal  shares,  as  tenants  in 

common  ;    and  if  there  should  be  a  failure  of  issue  of  all  such 

daughters  but  one,  or  if  there  should  be  only  one  such  daughter, 

then,  as  to  the  entirety  of  the  said  hereditaments,  To  THE  USE  of 

such  one  or  only  daughter  and  the  heirs  of  her  body ;  And  in 

default  of  such  issue.  To  THE  USE  of  the  said  wife,  her  heirs  and 

assigns :  And  it  is  hereby  declared,  that  the  premises  are  hereby 

1  Limitations,  in  remainder  to  estates  tail,  given  to  the  sons  of  the 
settlor's  sons  successively,  giving  estates  tail  to  the  son's  daughters  con- 
currently instead  of  successively,  are  not  uncommon  in  marriage 
settlements. 


•with  cross 
remainders 
in  tail; 


ultimate 
remainder 
to  wife  in 
fee. 

Trusts  of 

jointure 

term. 


SETTLEMENTS,  ETC.— PEECEDENTS  353 

limited  to  the  use  of  the  said  [trustees  of  terms]  for  the  said  term 
of  99  years  upon  trust  that  the  said  [trustees  of  terms],  or  the  sur- 
vivor of  them,  or  the  executors  or  administrators  of  such  survivor, 
or  other  the  trustees  or  trustee  for  the  time  being  of  the  same  term, 
shall  during  the  joint  lives  of  the  said  [husband]  and  [wife],  out  of  the 
rents  and  profits  of  the  premises,  raise  the  clear  yearly  sum  of  £  , 
and  pay  the  same  to  the  said  [wife]  for  her  separate  use,  without 
power  of  anticipation,  such  yearly  sum  to  be  considered  as  commenc- 
ing from  the  solemnisation  of  the  intended  marriage,  and  accruing 
from  day  to  day,  but  payable  quarterly  by  equal  payments,  the  first 
of  such  payments  to  be  made  at  the  end  of  three  calendar  months 
after  the  solemnisation  of  the  marriage,  if  the  said  [mfe]  shall  then 
be  living,  and  also  shall  raise  and  pay  all  such  moneys  as  shall  be 
required  to  defray  the  costs  and  expenses  incurred  in  performing 
any  of  the  trusts  of  the  said  term  of  99  years,  or  otherwise  in 
relation  thereto,  and  shall  permit  the  said  [husband]  to  receive  the 
residue  of  the  rent  and  profits  of  the  premises  for  his  own  use  for 
Trusts  of  the  period  and  in  manner  aforesaid  ;  And  IT  IS  HEREBY  DECLARED, 
^ia,°°*  that  the  premises  are  hereby  limited  to  the  use  of  the  said  [trustees 
of  terms],  their  executors,  administrators,  and  assigns,  for  the  said 
term  of  500  years.  Upon  trust  that  if  there  shall  be  any  younger 
child  or  children  of  the  said  intended  marriage  (that  is  to  say,  any 
child  or  children  other  than  an  eldest  or  only  son,  or  other  son  or 
sons  who,  before  his  or  their  respectively  attaining  the  age  of 
twenty-one  years  shall  become  entitled  either  in  possession  or  in 
remainder  under  or  by  virtue  of  these  presents  to  the  said  heredita- 
ments and  premises  for  the  first  estate  in  tail-male),  who  being  a  son 
or  sons  shall  attain  the  age  of  twenty-one  years,  or  being  a  daughter 
or  daughters  shall  attain  that  age  or  marry,  then  the  said  trustees 
of  terms  or  the  survivor  of  them  or  the  executors  or  administrators 
of  such  survivor,  or  other  the  trustees  or  trustee  for  the  time  being 
of  the  said  term  of  500  years  shall  after  the  death  of  the  survivor  of 
them  the  said  [husband]  and  [trr/e],  or  during  their  joint  lives  or  the 
life  of  such  survivor  with  the  consent  in  writing  of  the  said  [husband] 
and  [wife]  or  of  the  survivor  of  them  by  mortgage  of  the  premises 
comprised  in  the  said  term  of  500  years,  or  any  part  thereof,  or  by 
or  out  of  the  rents  and  profits  thereof  or  any  part  thereof,  or  by 
sale  of  any  timber  or  minerals  or  by  all  or  any  of  such  means  or 
by  any  other  reasonable  means  raise  for  the  portion  or  portions  of 
'         such  younger  child  or  children  the  sum  of  £  ;  such  sum  to 

be  vested  in  and  paid  to  such  child  or  to  all  or  such  one  or  more 
exclusively  of  the  others  or  other  of  the  said  younger  children,  at 
such  age  or  time  or  respective  ages  or  times  (not  previous  as  to  a 
son  to  his  attaining  twenty-one  years,  or  as  to  a  daughter  to  her 
attaining  that  age  or  marrying)  if  more  than  one,  in  such  shares^ 
and  with  such  future  executory  or  other  trusts  for  the  benefit  of  any 
such  child  or  children,  with  such  provisions  for  their  or  any  of  their 
maintenance,  education,  and  advancement,  upon  such    conditions 

^  As  to  extending  portions  to  remoter  issue,  see  last  Precedent  and 
note. 
VOL.  XIIL  23 

/ 


354 


SETTLEMENTS,  ETC.— PRECEDENTS 


Mainten- 
ance. 


Advance- 
ment. 


and  generally  in  such  manner  as  the  said  [husband]  and  [mife]  shall 
jointly  by  any  deed  or  deeds,  revocable  or  irrevocable,  or  as  the 
survivor  of  them  shall  in  like  manner,  or  by  will  or  codicil  appoint ; 
And  in  default  of  such  appointment,  and  so  far  as  no  such  appoint- 
ment shall  extend,  to  be  paid  to  or  divided  between  or  among  the 
said  younger  child  or  children,  if  more  than  one  in  equal  shares  to 
be  paid  to  hira,  her,  or  them  respectively,  being  a  son  or  sons  on 
attaining  twenty-one  years,  or  being  a  daughter  or  daughters  on 
attaining  that  age  or  marriage,  if  the  same  respectively  shall  happen 
after  the  death  of  the  survivor  of  them  the  said  [husband]  and  [w^^/e], 
but  if  the  same  respectively  shall  happen  during  their,  his,  or  her 
lives  or  life  then  immediately  after  the  death  of  such  survivor 
[hotchpot  clause,  Precedent  XI.  p.  345,  supra] ;  And  it  is  hereby 
FURTHER  AGREED  and  declared  that  the  said  trustees  or  trustee  of 
this  settlement  shall  after  the  death  of  the  survivor  of  them  the 
said  [husband]  and  [wife]  raise,  &c.  [continue  trust  to  raise  for  main- 
tenance such  yearly  sums  "  as  the  said  [husband]  and  [wife]  shall  jointly 
by  any  deed  or  deeds  revocable  or  irrevocable,  or  as  the  survivor 
of  them  shall  in  like  manner  or  by  will  or  codicil  appoint,"  &c., 
Precedent  XL  p.  345,  sup-a,  mutatis  mutandis"] ;  And  upon  further 
trust  that  the  said  trustees  or  trustee  of  this  settlement  shall  after 
the  death  of  the  survivor  of  them  the  said  [husband]  and  [wife]  or  in 
the  lifetime  of  them  or  of  the  survivor  of  them,  with  their,  his,  or 
her  consent  in  writing,  raise,  &c.  [continue  trust  for  advancement,  "in 
such  manner  as  the  said  [husband]  and  [wife]  or  the  survivor  of  them 
shall  direct,"  &c..  Precedent  XL  p.  346,  supra ;  and  add  power  for 
"  the  said  [husband]  and  [wife]  jointly  during  their  joint  lives  and 
for  the  survivor  of  them  by  deed  "  to  require  portions  to  be  raised 
in  their,  his,  or  her  lifetime;  power  for  trustees  to  create  specific 
securities;  power  for  trustees  to  limit  a  term  to  take  effect  in  the  life- 
time of  the  husband  and  wife  or  the  survivor,  substituting  throughout  the 
words  "  the  said  [husband]  and  [wife]  or  the  survivor  of  them  "  for 
the  words  "the  said  [husband] ;  "  and  proviso  that  surplus  rents  are  to  be 
PToVmo  thai  taken  by  the  reversioner,  Precedent  XL  pp.  346,  347]:  Provided 
pow^reo?  ALWAYS,  and  it  is  hereby  agreed  and  declared,  that  if  the  trust 
hereinbefore  contained  in  favour  of  the  said  [husband]  shall  determine 
in  his  lifetime,  then  all  the  powers  hereinbefore  given  to  him  jointly 
with  the  said  [wi/e],  or  to  him  alone,  if  he  shall  survive  her,  of 
making  or  giving  appointments,  consents,  or  directions  in  favour  of 
or  in  relation  to  any  issue  of  the  said  intended  marriage  shall  from 
and  after  such  determination  cease  to  be  exercisable  by  him,  but  all 
such  powers  shall  thenceforth  be  exercisable  by  the  said  wife  alone 
if  living  as  if  the  said  [husband]  had  died  at  the  time  of  such  deter- 
mination :  Provided  always,  and  it  is  hereby  agreed  and  declared 
that  it  shall  be  lawful  for  the  said  [wife]  if  she  shall  marry  again 
to^n^^*'^*^  subsequently  to  the  now  intended  marriage  [or,  if  she  shall  survive 
the  said  [husband]  and  marry  again],  but  subject  and  without  pre- 

1  If  the  power  is  given  generally,  it  is  to  be  borne  in  mind  that  in  case 
of  a  divorce  owing  to  the  original  husband's  misconduct,  the  Court  has 
power  to  modify  the  settlement  by  depriving  him  of  the  determinable  life 
interest  given  by  the  settlement. 


appoint- 
ment, &c., 
shall  cease 
to  be 

exercisable 
after  bank- 
ruptcy. 


Power  for 
wife  to 
appoint  a 


after-taken 
husband.i 


SETTLEMENTS,  ETC.— PKECEDENTS  355 

judice  to  any  of  the  uses,  trusts,  limitations,  and  powers  herein 
contained,  and  for  the  time  being  subsisting  or  capable  of  taking 
effect,  preceding  or  overriding  the  life  estate  hereinbefore  limited  to 
the  said  [wife]  by  deed,  will,  or  codicil,  to  appoint  to  any  and  every 
man  whom  she  may  so  subsequently  marry  (and  that  either  before 
or  after  any  and  every  such  marriage),  for  his  life,  or  for  any  less 
period,  and  yearly  rent-charge  or  yearly  rent-charges  not  exceeding 
£  in  the  whole  by  the  year,  free  from  all  deductions,  to 

commence  from  her  death  to  be  charged  upon  and  issuing  out  of  all 
or  any  of  the  hereditaments  and  premises  hereby  settled,  and  to  be 
P9wer  for    paid  at  such  times  and  in  such  manner  as  she  shall  direct ;  Provided 
charge        ALSO,  and  it  is  hereby  further  declared  that  it  shall  be  lawful  for  the 
chUdren  of  a  said  wife  if  she  shall  marry  again  subsequently  to  the  said  intended 
m^lage.'^'^  marriage  [or,  if  she  shall  survive  the  said  [husband]  and   marry 
again],  but  subject,  &c.  [ut  supra]  by  deed  &c.  [continue  power  for 
wife  to  charge  estates  with  portions  for  her  children  by  an  after-taken 
husband,  and  mutatis  mutandis.    Proviso  as  to  destination  of  accumulations 
of  rents  and  profits,  Precedent  XL     Where  it  is  desired  to  extend  the  powers 
given  by  the  Settled  Lands  Acts  the  necessary  pvovisions  should  be  inserted 
here.     These  special  clauses  are  of  considerable  length  and  particularity. 
See  vol.  vi.,  Byth,  and  Jarm.,  Conveyancing,  and  vol.  ii.,  Key  and 
&^.     Elphinstone] :  AND  THIS  INDENTURE  ALSO  WITNESSETH 
Assignment  that  in  further  pursuance  of  the  said  agreement,  and  for  the  con- 
hoids.         sideration  aforesaid  the  said  [wife],  with  the  approbation  of  the  said 
[husband]  hereby  assigns,  and  as  settlor  conveys  unto  the  said  [general 
trustees]  All  that  the  messuage  or  dwelling-house,  and  all  and  singular 
other  the  premises  comprised  in  or  expressed  to  be  demised  by  the 
Habendum,  hereinbefore  recited  indenture  of  lease  :  To  HOLD  all  the  premises 
To  trustees;  hereby  assigned  unto  the  said  [general  trustees]  henceforth  for  all  the 
residue  now  unexpired  of  the  said  term  of  years  therein 

granted  by  the  same  indenture  of  lease,  at  and   under  the  rent, 
covenants,  and  conditions  by  and  in  the  said  indenture  of  lease 
reserved  and  contained,  and  on  the  part  of  the  lessee  to  be  paid, 
upon  trust   observed  and  performed.  Upon  trust  out  of  the  rents  and  profits  of 
^)^pay  ren  ,  ^^^  premises  hereby  assigned  to  pay  the  rent  and  observe  and  perform 
the  covenants  and  conditions  by  and  in  the  said  lease  reserved  and 
contained,  and  on  the  part  of  the  lessee  to  be  paid,  observed,  and 
and  subject  performed:  And,  subject  thereto,  upon  such  trusts,  and  with  and 
up^(m'trust8  subject  to  such  powers,  provisions  and  declarations  as  shall  as  nearly 
fng^to^u°se3  Correspond  with  the  uses,  trusts,  powers,  provisions  and  declarations 
^r^hoids.    hereinbefore   limited,  declared    and  contained  of  and  concerning 
the  premises  hereinbefore  expressed  to  be  hereby  granted,  as  the 
different  nature  and  quality  of  the  premises  will  permit,  but  not  so 
as  to  increase  or  multiply  charges  or  powers  of  charging,  and  so 
that  the  leasehold  premises  shall  not  vest  absolutely  in  any  person 
hereby  made  tenant  in  tail  male  or  in  tail  by  purchase  of  the  here- 
ditaments and  premises  hereinbefore  expressed  to  be  hereby  granted, 
unless  he  shall  attain  the  age  of  twenty-one  years,  but  on  his  death 
under  that  age  shall  go  in  the  same  manner  as  if  they  had  been 
freeholds  of  inheritance  included  in  the  grant  hereinbefore  contained  j 


356 


SETTLEMENTS,  ETC.— PEE  CEDENTS 


Appoint-  Provided  always,  and  it  is  hereby  agreed  and  declared  that  the 
trustees  for  said  trustees  or  trustee  of  this  settlement  shall  be  the  trustees  or 
Settled        trustee  of  the  settlement  hereby  created  for  all  the  purposes  of  the 

Land  Acts 

and  of  Con-  Settled  Land  Acts,  1882  to  1890,  and  of  any  other  Act  or  Acts  for 
Ac^fAct)^'  the  time  being  in  force  relating  to  settled  lands,  and  also  for  the 
1881,8.  42.  purposes  of  sec.  42  of  the  Conveyancing  and  Law  of  Property  Act, 
ap^ln^  1881  :  Provided  always  and  it  is  hereby  agreed  and  declared  that 
ofterma**^  ^^®  Statutory  power  of  appointing  a  new  trustee  or  new  trustees  of 
the  said  terms  of  99  years  and  of  500  years  respectively,  or  either  of 
them,  and  of  appointing  a  new  trustee  or  new  trustees  of  this 
settlement,  when  and  so  often  as  a  vacancy  shall  occur  in  any  of  the 
said  several  classes  of  trustees  respectively,  shall  be  vested  in  the 
said  [husband]  and  [wife]  jointly  during  their  joint  lives,  and  by  the 
survivor  of  them  during  his  or  her  life,  and  after  the  death  of  such 
survivor,  in  the  person,  &c.  [Continue  as  in  Precedent  XL ;  trustee 
clauses,  Precedent  1.  p.  324,  supra.^] 
In  witness,  &c. 

The  Schedule  above  referred  to. 


and  of 
settlement 


Parties. 


First 
testatum. 


Grant  of 
freeholds. 

Habendum. 

To  trustees 
until  the 
marriage  to 
nse  of  hus- 
band; 

and  after- 
wards, to 
use  of  hus- 
band for 
life; 

remainder 
to  use  of 
wife  for  life , 

remainder 
to  issue  of 
marriage  as 
husband 
and  wife  or 
survivor 
appoint ; 


XIIL  SETTLEMENT  on  Marriage  of  Freeholds  to  Uses  and  of 
Leaseholds  in  Trust  for  the  Husband  and  Wife  successively  for 
Life,  with  Remainder  to  the  Issue  of  the  Marriage  as  the  Hus- 
band and  Wife,  or  the  Survivor,  shall  appoint,  and  in  Default 
of  Appointment,  to  the  Children  in  Equal  Shares  in  Tail  as 
Tenants  in  Common,  with  Cross-remainders. 

THIS  INDENTUKE,  made,  &c..  Between  [intended  husband], 
of,  &c.,  of  the  first  part ;  [intended  wife],  of,  &c.,  of  the  second  part ;. 
and  [trustee],  of,  &c.,  and  [trustee],  of,  &c.,  of  the  third  part, 
WITNESSETH,  that  in  consideration  of  the  intended  marriage 
between  the  said  [husband]  and  [wife],  the  said  [husband]  hereby 
grants,  and  as  settlor  conveys  unto  the  said  [trustees]  and  their 
heirs,  All  that  [describe  freehold  parcels].  To  hold  the  same  Unto 
the  said  [tnistees]  and  their  heirs.  To  the  use  of  the  said  [husband], 
his  heirs  and  assigns,  until  the  marriage,  and,  after  the  marriage,^ 
To  THE  USE  of  the  said  [husband]  and  his  assigns,  during  his  life 
without  impeachment  of  waste,  with  remainder  after  his  death  To 
THE  USE  of  the  said  [wife]  and  her  assigns,  during  her  life  without 
impeachment  of  waste,  with  remainder  after  her  death  To  THE  USE 
of  all  or  such  one  or  more  of  the  issue  of  the  marriage  in  such 
manner  as  the  said  [husband]  and  [wife]  shall  by  deed  appoint,  And 
in  default  of  or  until  such  appointment  as  the  survivor  of  them 
shall  by  deed  or  will  or  codicil  appoint ;  And  in  default  of  and 
subject  to  any  such  appointment,  if  there  shall  be  only  one  child  of 
the  marriage.  To  the  use  of  such  only  child  in  tail,  but  if  there 

1  Considerations  of  space  do  not  admit  of  including  in  these  Precedents 
examples  of  family  resettlements.  Resettlements  are  usually  made  on  the 
marriage  of  the  eldest  son,  and  provide  for  the  continiiance  and  protection 
of  the  father  and  those  interested  under  the  existing  settlement,  and, 
further,  also  frequently  provide  for  collaterals.  See  vol.  vi.  Byth.  and  Jarm.,. 
Conveyancing  for  Precedents. 


SETTLEMENTS,  ETC.— PKECEDENTS  357 

indefaidt  shall  be  more  than  one  such  child,  then  To  the  use  of  all  such 
children  as  children  in  equal  shares  as  tenants  in  common  in  tail,  with  cross- 
a)mmonhi  remainders  between  them  in  tail,  with  remainder  TO  THE  use  of 
*^'.  the  said  [husband],  his   heirs   and   assigns    [here  insert  such  powers 

to  use  of  and  provisions  as  may  be  advisable,  see  preceding  Precedents']  :  AND 
h^bandin  rpjjjg  INDENTURE  ALSO  WITNESSETH,  that  for  the  con- 
Second  sideration  aforesaid,  the  said  [husband]  hereby  assigns,  and  as 
Assignment  settlor  conveys  unto  the  said  [trustees],  All  [describe  parcels  as  in 
hoids^^  <Ac  lease].  All  which  premises  were  by  an  indenture  of  lease  dated, 
&c.,  and  expressed  to  be  made,  &c.,  demised  unto  the  said  [husband], 
his  executors,  administrators,  and  assigns,  from  the  day 

of  19     1  for  the  term  of  years,  at  the  yearly 

rent  of  £  ,  and   subject   to  the   lessee's  covenants  and 

Habendum.  Conditions  therein  contained.  To  hold  to  the  said  [trustees],  their 
executors,  administrators,  and  assigns,  during  all  the  residue  now 
to  come  and  unexpired  of  the  said  term  of  years  at  and 

under  the  rent,  covenants,  and  conditions  by  and  in  the  said 
indenture  of  lease  reserved  and  contained,  and  on  the  part  of 
Trusts  cor-  the  lessee  to  be  paid,  observed,  and  performed,  Upon  trust  out 
wfth'uses^of  of  the  rents  and  profits  of  the  premises  hereby  assigned  to  pay 
^  °  ^'  the  rent  and  observe  and  perform  the  covenants  and  conditions  by 
and  in  the  said  lease  reserved  and  contained,  and  on  the  part  of  the 
lessee  to  be  paid,  observed,  and  performed  ;  And,  subject  thereto, 
upon  such  trusts,  and  with  and  subject  to  such  powers,  provisions, 
and  declarations  as  shall  as  nearly  correspond  with  the  uses,  trusts, 
powers,  provisions,  and  declarations  hereinbefore  limited,  declared 
and  contained  of  and  concerning  the  premises  hereinbefore  expressed 
to  be  hereby  granted,  as  the  different  nature  and  quality  of  the 
premises,  and  the  rules  of  law  and  equity  will  permit,  but  not  so  as 
to  increase  or  multiply  charges  or  powers  of  charging,  and  so  that 
the  leasehold  premises  shall  not  vest  absolutely  in  any  person  hereby 
made  tenant  in  tail  by  purchase  of  the  the  premises  hereinbefore 
expressed  to  be  hereby  granted,  unless  he  shall  attain  the  age  of 
twenty-one  years,  but  on  his  death  under  that  age  shall  go  in  the 
same  manner  as  if  they  had  been  freeholds  of  inheritance  included 
in  the  grant  hereinbefore  contained  [appointment  of  trustees  for 
purposes  of  Settled  Land  Acts  and  Conveyancing,  dc.  Act,  1881,  s.  42, 
Precedent  XL  ;  power  to  appoint  new  trustees,  and  trustee  clauses,  Pre- 
cedent L  p.  324,  supra]. 
In  witness,  &c. 

XIV.  NAME  AND  ARMS  CLAUSE. 

[The  following  limitation  of  uses  obliging  successive  takers  of  an  estate 
to  assume  the  nnms  and  arms  of  the  settlor  are  inserted  after  the 
provision  for  the  wife^s  jointure.  See  Precedent  XL  p.  344,  supra. 
See  article  Name  and  Arms  Clause,  Vol.  IX.  p.  503.] 

Remainder  To  THE  USE  OF  the  said  [husband],  for  his  life  without  impeach- 
interfded  mcnt  of  wastc  :  And,  after  the  decease  of  the  said  [husband],  To 
to^^ule!^      THE  USE  of  the  said  [trustees  of  term],  their  executors,  administrators. 


358  SETTLEMENTS,  ETC.— PRECEDENTS 

Remainder  and  assigns,  for  a  term  of  500  years,  to  commence  from  the  death 
trusted  for  of  the  survivor  of  them  the  said  [husband],  without  impeach- 
600 years,     mgnt   of  waste,    upon    the   trusts,  and  with   and  subject   to   the 

powers  and  provisions  hereinafter  declared  concerning  the  same ; 

And  from  and  after  the  determination  of  the  same  term,  and  in 
Remainder  the  meantime  subject  thereto,  and  to  the  trusts  thereof,  To  THE 

to  use  of  V  '  / 

first  and      USE  of  the  first  and  other  sons  of  the  said  [hiisbaiid]  successively 

of  husband  according  to  the  seniority  and  the  heirs  male  of  their  respective 

and^n^f'  bodies,  with  remainder  To  the  use  of  the  first  and  other  sons  of 

the  said  [hiisband]  successively  according  to  seniority  and  the  heirs 

of  their  respective  bodies ;  with  remainder  to  the  use  of  the  first 

and  other  daughters  of  the  said  [husband]  successively  according  to 

seniority  and  the  heirs  of  their  respective  bodies ;  with  remainder 

To  THE  USE  of  the  said  [husband]  his  heirs  and  assigns  :  Provided 

Name  and    ALWAYS,  and  it  is  hereby  agreed  and  declared,  that  every  person 

arms  clause.     ,         ,  ,,  .        ..,,.•  ri  ■  ^    ri      i       n 

who  after  the  determniation  of  the  life  estate  of  the  said  [husband] 

shall  under  or  by  virtue  of  the  limitations  hereinbefore  contained 
or  of  this  proviso,  become  entitled  beneficially  to  the  possession  of 
receipt  of  the  rents  and  profits  of  the  said  manors,  lands,  and 
hereditaments  hereinbefore  settled  as  tenant  for  life,  or  tenant 
in  tail-male  or  in  tail  by  purchase,  and  who  shall  not  then  use 
and  bear  the  surname  and  arms  of  ,  shall  within  the  space 

of  one  year  next  after  he  or  she  shall  so  become  entitled,  or  (being 
an  infant)  within  one  year  after  he  or  she  shall  attain  the  age  of 
twenty-one  years,  And  that  every  person  to  whom  any  female 
so  becoming  entitled  as  aforesaid  shall  be  married,  or  whom  she 
shall  afterwards  marry,  not  being  a  peer  or  the  eldest  son  of  a  peer, 
shall  within  one  year  next  after  such  female  shall  so  become  entitled 
or  shall  so  marry,  whichever  of  such  events  shall  last  happen  (unless 
in  the  said  respective  cases  any  such  person  shall  be  prevented  by 
death),  take  upon  himself  or  herself  and  use  on  all  occasions  the  sur- 
name of  either  alone  or  in  addition  to  his  or  her  other  surname 
(but  so  that  the  name  of  shall  be  the  last  and  principal  name), 
and  shall  assume  the  arms  of  either  alone  or  quarterly  with 
his  or  her  ifamily  arms  :  And  shall  within  such  one  year  apply 
for  and  endeavour  to  obtain  a  licence  from  the  Crown,  or  take  such 
other  steps  as  may  be  necessary  to  enable  and  authorise  him  or  her 
respectively  so  to  take  and  use  the  surname  of  ,  and  to  assume 
Penalty  for  and  bear  the  arms  of  as  aforesaid  :  ^  And  that  in  case  any  person 
^i^e  ^  who  shall  so  become  entitled  as  aforesaid,  or  such  husband  as  afore- 
nameand  gg^j^j  ^f  ^j^y  g^^jj  person,  being  a  female,  shall  refuse  or  neglect 
within  such  one  year  to  take  and  use  such  surname,  or  to  assume 
such  arms,  or  to  take  such  steps  as  aforesaid,  or  shall  at  any  time 
afterwards  discontinue  to  use  such  surname  or  to  bear  such  arms, 
then  and  in  every  such  case  from  and  after  the  expiration  of  such 
one  year,  or  immediately  after  such  discontinuance  as  aforesaid)  as 
the  case  may  be),  if  the  person  who  or  whose  husband  shall  so  for 
the  time  being  refuse,  neglect  or  discontinue  as  aforesaid,  shall  be 
a  tenant  for  life,  the  limitations  hereinbefore  contained  to  the  use 
1  See  as  to  this,  Austen  v.  Collins,  1886,  W.  N.  p.  91. 


arms. 


SETTLEMENTS,  ETC.— PEECEDENTS  359 

of  such  person  during  his  or  her  life  shall  absolutely  determine  and 
be  void;  And  if  the  person  who  or  whose  husband  shall  so,  for  the 
time  being,  refuse,  neglect  or  discontinue  as  aforesaid,  shall  be  tenant 
in  tail-male  or  in  tail  by  purchase,  then  the  limitations  hereinbefore 
contained  under  which  such  person  shall  be  so  tenant  in  tail  male 
or  in  tail,  and  in  case  of  such  person  being  tenant  in  tail  male,  then 
also  the  limitations  hereinbefore  contained  to  him  in  tail  shall  ab- 
solutely determine  and  be  void ;  And  in  the  said  respective  cases 
the  manors,  lands  and  hereditaments  hereby  settled  shall  immediately 
go  over  in  the  same  manner  as  if  such  person,  being  tenant  for  life, 
were  actually  dead,  or,  being  tenant  in  tail-male  or  in  tail,  were 
actually  dead,  and  there  was  a  general  failure  of  his  or  her  issue, 
without  prejudice  nevertheless  to,  but  not  so  as  to  accelerate  any 
jointure  or  jointures,  portion  or  portions,  sum  or  sums  of  money, 
lease  or  leases,  sale  or  sales,  exchange  or  exchanges,  partition  or 
partitions,  or  appointment  or  appointments  of  new  trustees,  which, 
previously  to  such  determination,  shall  have  been  charged,  granted 
or  made  under  any  of  the  powers  for  those  purposes,  herein  con- 
Oontingent  tained  or  given  by  any  statute :  Provided  always,  that  the 
m)Tto°be'^  determination  of  the  estate  of  any  tenant  for  life  by  virtue  of  the 
prejudiced.  pj-Qviso  hereinbefore  contained  shall  not  exclude  or  prejudice  any  of 
the  contingent  remainders  hereinbefore  limited  to  his  or  her  sons  and 
daughters  respectively  or  any  other  persons,  but  that  so  long  as 
any  such  remainder  shall  be  so  contingently  subsisting  and  capable 
of  taking  effect,  the  said  manors,  lands,  and  hereditaments  hereby 
settled  shall  remain  and  be  To  the  use  of  the  said  [general  trustees], 
their  heirs  and  assigns,  during  the  remainder  of  the  life  of  the 
tenant  for  life  whose  estate  shall  have  so  determined  as  aforesaid. 
Upon  trust,  that  immediately  from  and  after  such  determination 
as  aforesaid  of  such  estate  for  life,  and  during  the  suspense  and 
contingency  of  any  such  expectant  remainders,  the  said  trustees  or 
trustee  of  this  settlement  shall  pay  and  apply  the  rents  and  profits 
of  the  premises  unto  the  person  or  persons  for  the  time  being  entitled 
under  or  by  virtue  of  the  limitations  and  provisions  hereinbefore 
contained  to  the  then  first  vested  estate  in  remainder  expectant  on 
the  death  of  such  person  as  aforesaid. 


XV.  VOLUNTARY  SETTLEMENT  of  R^L  and  Personal  Estate 
for  the  Benefit  of  the  Settlor,  his  Wife,  Children,  and  Grand- 
children ;  Power  of  Revocatum} 

Partiea.  THIS  INDENTURE,  made,  &c.,  Bet\n^een  A.  B.  of,  &c.  [settlw], 

of  the  one  part,  and  C.  D.  of,  &c.,  and  E.  F.  of,  &c.  [trustees],  of  the 

*  It  is  not  necessary  that  such  a  settlement  should  contain  a  power  of 
revocation,  or  even  a  general  power  of  disposition  on  failure  of  the  im- 
mediate or  principal  purposes  of  the  deed,  but  the  settloi-'s  attention  should 
be  particularly  drawn  to  the  fact  that  a  power  of  either  description  might 
be  reserved  to  him.  See  James  v.  Couchman,  29  Ch.  D.  212,  the  actual 
decision  in  which  case  must,  however,  be  regarded  as  of  doubtful  authority 
(see  Tucker  v.  Bennett,  38  Ch.  D.  1).  For  Precedents  of  Deeds  of  Gift,  see 
tit.  Gift,  Vol.  VI.  p.  373. 


360  ^     SETTLEMENTS,  ETC— PEECEDENTS 

witnesseth,  other  part,  WITNESSETH  that,  in  consideration  of  the  natural  love 

and  affection  of  the  said  A.  B.  for  his  wife,  and  issue  hereinafter 

mentioned,  and  for  divers  other  good  considerations,  the  said  A.  B. 

ConTOyance.doth  hereby  grant  unto  the  said  C.  D.  and  E.  F.  and  their  heirs 

Habendum,  [parcels],  To  HOLD  the  Said  premises  unto  the  said  C.  D.  and  E.  F. 

and  their  heirs,  TO  THE  USE  of  the  said  A.  B.  and  his  assigns,  during 

his  life  without  impeachment  of  waste  ;  And,  after  his  death,  TO  THE 

Totfieuse   usE  of  G.  B.,  his  wife,  and  her  assigns,  during  her  life,  without  im- 

for  liie.        peachment  of  waste ;  And,  after  the  death  of  the  said  G.  B.,  TO  THE 

S^bis  wfte    U^^  °^  ^^®  ^^^^  ^-  ^-  ^"^  ^-  ^M  ^^^^^  ^®^^^  ^^^  assigns,  UPON  TRUST 

for  life.  that  the  said  C.  D.  and  E.  F.,  or  the  survivor  of  them,  or  the 
to^tras^ees^  executors  or  administrators  of  such  survivor  (which  several  persons, 
to*^eu/"^*  and  other  the  trustees  or  trustee  for  the  time  being  of  these  presents, 
are  hereby  declared  to  be  trustees  hereof  for  purposes  of  the  Settled 
Land  Acts,  1882  to  1890,  and  are  hereinafter  referred  to  as  "the 
and  hold  the  trustees  "),  shall  sell  the  said  premises  ;  And  shall  hold  the  moneys 
™uced^uponto  arisc  from  every  such  sale  (after  payment  thereout  of  all  expenses) 
trust,  upon  the  trusts  following :  (that  is  to  say,)  As  TO  three-sixth  parts 

sixths  for     thereof,  UPON  TRUST  to  pay  the  same  equally  among  such  of  the 
children  of  children  hereinafter  named  of  the  said  A.B.,  viz.  H.  B.,  J.  B.,  and 
'  K.  B.,  as  shall  be  living  at  the  death  of  the  survivor  of  the  said 
A.  B,  and  G.  B.,  or  shall  be  then  dead,  leaving  issue  then  living,  the 
share  or  shares  of  such  of  them  as  shall  be  then  dead  leaving  issue 
then  living  to  be  paid  to  his,  her,  or  their  respective  executors  or 
administrators,  as  part  of   his,   her,  or    their   respective   personal 
—as  to  one-  estate;    And  AS  TO  one  other  sixth  part  thereof  UPON  TRUST  to 
invest*and    iuvest  the  samc,  in  the  names  of  the  trustees  in  any  of  the  public 
untii™^^***'  stocks  or  funds  of  the  United  Kingdom  (but  in  no  other  invest- 
one^ftiw'^  ment),   and    to    accumulate   the    income    thereof   in    the   way   of 
settlor's       compound  interest,  by  similarly  investing  the  same  and  the  resulting 
issue  within  income  thereof,  until  the  same  shall  become  payable  as  hereinafter 
years;         mentioned;  (that  is  to  say)  if  L.  B.,  the  son  of  the  said  A.  B.,  or 
any  issue  of  the  said  L.  B.  (he  being  then  dead)  shall  claim,  within 
fifteen  years  from  the  date  of  these  presents,  then  to  pay  or  transfer 
the  same,  and  the  accumulations  thereof,  to  the  said  L.  B.,  or  (he 
being  dead)  to  his  issue  then  living,  such  issue,  if  more  than  one,  to 
take  in  equal  shares,  per  stirpes;  but  if  the  said  L.  B.,  or  any  issue 
of  the  said  L.  B.,  shall  not  claim  within  such  fifteen  years,  or  if, 
before  the  expiration  thereof,  it  shall  be  ascertained  that  the  said 
L.  B.  is  dead,  and  that  no  issue  of  the  said  L.  B.  is  then  living,  then, 
immediately  upon  the  expiration  of  the  said  fifteen  years,  or  upon 
the  death  of  the  said  L.  B.  and  the  failure  of  his  issue  being  so  ascer- 
tained, whichever  shall  first  happen,  the  trustees  shall  hold  the  last- 
mentioned  sixth  part   of   the   said    net   purchase-moneys,  and  the 
accumulations  thereof,  upon  the  trusts  hereinbefore  declared  of  the 
—as to        first-mentioned  three  sixth  parts;  And  AS  TO  the  remaining  two 
tw'S-lkths    sixth  parts  of  the  said  net  purchase-moneys,  UPON  TRUST  to  pay  the 
to  divide     game  equally  among  such   of  the  persons  hereinafter  named,  viz. 
settlor's       M.  H.,  N.  H.,  and  0,  H.,  the  children  of  P.  H.,  deceased,  who  was 
children,     a  daughter  of  the  said  A.  B.,  as  shall  be  living  at  the  death  of  the 


SETTLEMENTS,  ETC.— PEECEDENTS 


361 


Declaration 
of  trust  of 
rents  and 
profits  till 
a  sale. 


Witnesseth, 
secondly. 


Assignment 
of  chattels 
to  the 
trustees. 

Habendum 
upon  trusts 
for  husband 
and  wife 
during  their 
lives. 


Power  of 
revocation. 


survivor  of  the  said  A.  B.  and  G.  B.,  or  shall  be  then  dead  leaving 
issue  then  living,  the  share  or  shares  of  such  of  them  as  shall  be  then 
dead  leaving  issue  then  living  to  be  paid  to  his,  her,  or  their  respec- 
tive executors  or  administrators,  as  part  of  his,  her,  or  their  respective 
personal  estate.  And  it  is  hereby  declared,  that  until  all  the 
said  premises  shall  be  sold,  the  trustees  shall  pay  and  apply  the  net 
income  thereof,  or  of  the  unsold  part  thereof  (after  payment  there- 
out of  all  taxes,  rates,  expenses  of  repairs  and  insurance,  and 
other  outgoings),  in  the  manner  in  which  the  net  moneys  produced 
by  the  sale  thereof,  or  the  stocks  or  funds  in  or  upon  which  any 
share  or  shares  thereof  are  hereinbefore  directed  or  authorised  to 
be  invested,  or  the  income  thereof,  would  have  been  payable  or 
applicable,  if  such  premises  had  been  sold  and  such  investments 
made.  AND  THIS  INDENTURE  ALSO  WITNESSETH  that, 
in  consideration  of  the  natural  love  and  affection  of  the  said 
A.  B.  for  his  said  wife,  and  for  his  daughters  hereinafter  named, 
he,  the  said  A.  B.,  doth  hereby  assign  unto  the  said  C.  D. 
and  E.  F.,  their  executors,  administrators,  and  assigns,  ALL  his 
pictures,  books,  plate,  plated  articles,  linen,  china,  household  goods, 
furniture,  chattels,  and  effects  (other  than  money  or  securities  for 
money),  to  hold  the  same  unto  the  said  C.  D.  and  E.  F.,  their 
executors,  administrators,  and  assigns,  UPON  TRUST  to  permit  the 
said  A.  B.  during  his  life,  and  after  his  death  the  said  G.  B.  during 
her  life,  to  use  the  same ;  and  after  the  death  of  the  survivor  of  the 
said  A.  B.  and  G.  B.,  UPON  TRUST  to  divide  the  same  equally  between 
the  said  H.  B.  and  K.  B.,  their  executors,  administrators,  or  assigns.^ 
[Power  to  appoint  new  trustees  and  trustee  clauses,  Precedent  I.  p.  324, 
supra.]  And  it  is  hereby  declared,  that  the  said  A.  B.  may  at 
any  time  or  times  by  deed  or  will  or  codicil  either  alter  or  absolutely 
revoke  all  or  any  of  the  uses,  trusts,  and  estates  hereinbefore  limited 
and  declared,  and  by  the  same  or  any  other  deed  or  by  will  or  codicil 
limit  and  declare  such  new  or  other  uses,  trusts,  and  estates  of  or 
concerning  all  or  any  of  the  said  premises  hereinbefore  granted  and 
assigned  respectively  as  he  shall  think  fit. 
In  witness,  &c. 

The  Schedule  above  referred  to. 


XVI.  DEED  OF  SEPARATION  between  Husband  and  Wife. 

THIS  INDENTURE,  made  the  day  of 

Parties.  19  ,  BETWEEN  A.  B.,  of,  &c.  [husband],  of  the  first  part,  C.  B.,  of, 
&c.,  the  wife  of  the  said  A.  B.,  of  the  second  part,  and  E.  F.,  of,  &c., 
and  G.  H.,  of,  &c.  [tru^tees],^  of  the  third  part :  Whereas  unhappy 

'  This  deed  (not  being  on  marriage)  will  not  come  within  the  exception 
of  "marriage  settlements"  in  sec.  4  of  the  Bills  of  Sale  Act,  1878,  and  will 
therefore  require  registration  as  a  bill  of  sale  (Swift  v.  Pannell,  24  Ch.  D. 
210 ;  Reeves  v.  Barlow,  11  Q.  B.  D.  610)  to  escape  the  operation  of  sec.  8  of 
the  Act  of  1878. 

2  In  cases  involving  the  right  to  commence  judicial  proceedings,  the 
intervention  of  a  trustee  or  trustees  may  safely  be  dispensed  with,  as  it 
may  also  in  other  cases,  where  the  marriage  took  place  after  the  commence- 
ment of  the  M.  W.  P.  Act,  1882  {Sweet  v.  Sweet,  [1895]  1  Q.  B.  12). 


362  SETTLEMENTS,  ETC.— PRECEDENTS 

Recital  of     differences  have  arisen  between  the  said  A.  B.  and  C.  B.  in  conse- 

di  ff c  rs  1 1  c©s 

and  agree-'  quence  whereof  they  have  agreed  to  live  separate  from  each  other, 
separation;  and  to  enter  into  the  arrangement  hereinafter  expressed:  And 
—of  wife  WHEREAS  the  said  C.  B.  is  entitled  in  possession  during  her  life  to 
entitled  to  the  income  arising  from  funds  comprised  in  the  settlement  made 
interests  in  OH  her  marriage  with  the  said  A.  B.,  and  in  the  event  of  her  sur- 
person  ty,  ^j^jj^g  jjgj,  gjgtgj.  J  g  gj^g  yf[\\^  under  the  will  of  her  father  W.  K., 

be  entitled  to  receive,  from  and  after  the  death  of  the  said  I.  K.  and 

during  the  remainder  of  her  own  life,  the  income  arising  from  the 

funds  representing  a  legacy  of  £  thereby  bequeathed  for  the 

benefit  of  the  said  I.  K.  during  her  life  and  afterwards  of  the  said 

—of there    C.  B.  and  her  issue  and  otherwise:  And  whereas  the  said  A.  B. 

chUc^enT    and  C.  B.  have  children  and  no  more,  namely  [give  their 

names  (including  M.  B.  and  N.  B.  afterwards  mentioned)  and  ages']  : 

Witnesseth.  NOW  THIS  INDENTURE  WITNESSETH,  that  in  pursuance  of 

the  said  agreement,  and  for  the  several  consideiations  herein  appear- 

Mutuai        ing,  IT  IS  hereby  AGREED  AND  DECLARED,  and  each  of  them  the 

andToOTe^'   Said  A.  B.  and  C.  B.,  so  far  as  the  stipulations  hereinafter  contained 

'^*°'*         are  to  be  performed  or  observed  by  him  or  her,  doth  hereby  covenant 

with  the  other  of  them,  and  as  a  separate  covenant  with  the  said 

E.  F.  and  G.  H.,  and  they  the  said  E.  F.  and  G.  H.,  so  far  as  the 

stipulations  hereinafter  contained  are  to  be  performed  or  observed 

by  the  said  C.  B.,  do  and  as  separate  covenants  also  each  of  them 

doth  hereby  covenant  with  the  said  A.  B.  as  follows  (that  is  to 

say)  :— 

Wife  may  I.  The  said  C.  B.  may  and  shall  henceforth  during  the  life  of  the 

s'eparatp,      Said  A.  B.  Hve  separate  from  him  as  if  she  were  unmarried,  and  shall 

8haii"moi^^t  be  free  from  his  marital  control,  and  neither  of  them  the  said  A.  B. 

the  other.     ^^^^  Q  g  g^g^jj  j,j  g^^y  y^g^y  Hiolcst^  or  iutcrferc  with  the  other  of 

them,  or  shall  require  or  by  any  proceeding  whatever  attempt  to 

compel  the  other  of  them  to  return  to  cohabitation, ^  or  shall  take 

any  proceedings  to  obtain  a  divorce  or  judicial  separation  on  account 

of  anything  already  done  by  the  other  of  them,^  [or  a  decree  annulling 

their  marriage  *] :  And  if  any  such  proceedings  shall  be  taken  by 

either  of  them  on  account  of  anything  done  subsequently  to  the  date 

of  these  presents,  nothing  already  done  by  the  other  of  them  shall 

be  pleaded  or  admissible  in  evidence  in  such  proceedings.^ 

Wife  may  ^^-  '^^^  ^^'^  ^'  ^-  ^^Y  retain  as  her  separate  property,  and 

TOruin        dispose  of  accordingly,  all  the  articles  of  personal  ornament  and 

personal      drcss,  and  all  the  personal  estate  belonging  to  the  said  A.  B.  now  in 

ornaments,  .  .  . 

and  dispose  her  possession,  and  all  real  and  personal  estate  which  she  is  or  may 
and  per-  hereafter  become  entitled  to,  [or  which  the  said  A.  B.  is  or  may 
as  a /erne  hereafter  become  entitled  to  in  her  right],  and  if  she  shall  die  in  the 
'°  '  lifetime  of  the  said  A.  B.  without  having  disposed  of  such  real  and 

1  Fearon  v.  Earl  of  Aylesford,  14  Q.  B.  D.  793  ;  Sweet  v.  Sweet,  [1895] 
1  Q.  B.  12  ;  Hunt  v.  Hunt,  [1897]  2  Q.  B.  547. 

2  See  Clark  v.  Clark,  10  P.  D.  188. 

3  See  Gandy  v.  Gandy,  7  P.  D.  168  ;  30  Ch.  D.  57  ;  Rose  v.  Rose,  8  P.  D. 
98  ;  Izard  v.  Izard,  14  P.  D.  45  ;  Bishop  v.  Bishop,  [1898]  P.  138. 

*  See  Aldridge  v.  Aldridge,  13  P.  D.  210. 
^  See  Rose  v.  Rose,  uhi  supra. 


SETTLEMENTS,  ETC.— PEECEDENTS 


363 


Wife  may 
have  the 
custody  of 
certain 
children ; 


— ^but  shall 
allow  them 
to  spend 
part  of  the 
holidays 
with  the 
father. 

Access  to 
children. 


Power  to 

appoint 

suardians.3 


The  hus- 
band to  pay 
to  the  wife 
an  annuity 
varying  in 
amount. 


The  wife 
to  support 
herself  and 
pay  her 
debts,  and 
indemnify 
husband 
therefrom. 


personal  estate  or  any  part  thereof,  then  such  real  and  personal 
estate  or  so  much  thereof  as  may  remain  undisposed  of  shall  at  her 
death  belong  to  the  persons  or  person  who  would  at  her  death 
have  become  entitled  thereto  by  law  had  she  died  seised  or  possessed 
thereof  intestate  and  a  widow,  such  persons  if  more  than  one  to  take 
as  tenants  in  common  in  the  shares  in  which  they  would  have  taken 
by  law  in  that  event. 

III.  The  said  C.  B.,  performing  and  observing  the  stipulations 
herein  on  her  part  contained  [and  remaining  chaste  ^]  shall  have  the 
sole  custody  and  guardianship  of  the  said  M.  B.  and  N.  B.  during 
their  respective  minorities,  [but  shall  not  remove  either  of  them  out 
of  England  without  the  consent  in  writing  of  the  said  A.  B.,^  and 
shall  allow  each  of  them  to  spend  one-half  of  his  or  her  summer  and 
winter  holidays  with  the  said  A.  B.  or  his  relatives  in  such  places  [in 
England]  as  he  or  they  may  desire]. 

IV.  Each  of  them  the  said  A.  B.  and  C.  B.  shall  have  the  right 
at  all  times  to  communicate  by  letter  with  the  children  left  under 
or  committed  to  the  guardianship  of  the  other  of  them,  and  the 
right  of  access  to  such  children  at  convenient  times  to  be  settled 
in  case  of  dispute  by  two  arbitrators  [&c.  (see  article  Arbitration, 
Vol.  I.  p.  464  et  seq.),  or  by  the  trustees  or  trustee  for  the  time  being 
of  these  presents]. 

V.  Each  of  them  the  said  A.  B.  and  C.  B.  may  by  will  or  other- 
wise appoint  a  guardian  or  guardians  after  his  or  her  death  of  the 
children  left  under  or  committed  to  his  or  her  guardianship,  and  in 
the  event  of  this  power  being  exercised  by  him  or  her,  such  children 
shall  remain  under  the  sole  control  of  the  guardian  or  guardians  so 
appointed. 

VI.  The  said  A.  B.  shall,  during  the  joint  lives  of  himself  and 
the  said  C.  B.,  if  the  said  C.  B.  shall  so  long  perform  and  observe 
the  stipulations  herein  on  her  part  contained  [and  remain  chaste],* 
pay  to  the  said  C.  B.  for  her  separate  use  without  power  of  anticipa- 
tion, such  an  annual  sum  of  money  as,  when  added  to  the  annual 
income  actually  for  the  time  being  receivable  by  the  said  C.  B.  under 
the  said  marriage  settlement  and  will  of  the  said  W.  K.  respectively, 
will  make  up  for  each  year  an  annuity  of  £  clear  of  all 
deductions  except  income  tax,  the  said  annual  sum  to  be  considered 
as  accruing  from  day  to  day,  but  to  be  paid  in  advance  by  equal 
quarterly  payments  on  the                  day  of                  ,  the 

day  of  ,  the  day  of  ,  and  the 

day  of  in  every  year,  commencing  on  the  day 

of  next. 

VII.  The  said  C.  B.  shall,  out  of  the  provisions  made  for  her  by 
the  said  settlement  and  will,  and  by  these  presents  respectively,  or 

'  This  is,  perhaps,  not  a  usual  provision  where  the  Court  grants  per- 
manent maintenance  to  a  divorced  wife,  but  each  case  depends  on  its  own 
circumstances  {Wood  v.  Wood,  [1891]  P.  272  ;  Kettlewell  v.  Kettl&well,  [1898] 
P.  138  ;  Hart  v.  HaH,  18  Ch.  D.  670. 

2  See  Hunt  v.  Hunt,  ubi  supra. 

3  This  clause  is  not  usual. 
*  Vide  supra. 


364  SETTLEMENTS,  ETC.— PKECEDENTS 

otherwise,  in  all  respects  support  and  maintain  herself,  and  pay  and 
discharge  all  the  debts,  engagements,  and  liabilities  which  she  may 
incur  or  enter  into,  and  shall  indemnify  the  said  A.  B.,  his  heirs, 
executors,  and  administrators  therefrom,  and  from  all  actions,  pro- 
ceedings, costs,  damages,  expenses,  claims,  demands,  and  liability  on 
account  thereof. 
The  bus-  VIII.  The  Said  A.  B.  shall  during  his  life,  if  the  said  M.  B.  and 

a  stated       N.  B.  or  either  of  them  shall  so  long  remain  under  the  age  of 
^r^pwT^  twenty-one  years  and  reside  with  or  under  the  guardianship  of  the 
chUd^Uving  Said  C.  B.,  and  if  the  said  C.  B.  shall  so  long  perform  and  observe 
modier^      ^^®  ^^^'^  Stipulations  herein  on  her  part  contained,  pay  to  the  said 
C.  B.  in  respect  of  each  such  child  for  the  time  being  under  the  age 
of  twenty-one  years  and  resident  as  aforesaid,  an  annual  sum  of 
£  ,  clear  of  all  deductions  except  income  tax,  to  be  con- 

sidered as  accruing  from  day  to  day,  but  to  be  paid  as  hereinbefore 
mentioned  in  relation  to  the  sum  required  to  make  up  the  said 
—to  be        annuity  of  £  ,  and  to  be  applied  by  the  said  C.  B.  for  or 

the'inain°'  towards  the  maintenance,  education,  and  benefit  of  such  child  in 
edu^cM.^fon'^^  exoneration  of  the  said  A.  B.,  but  without  liability  on  the  part  of 
of  thecMid.  |^}jg  gj^j^j  Q  g  ^q  account  SO  long  as  such  child  shall  be  adequately 
maintained  and  educated  [to  the  satisfaction  of  the  trustees  or  trustee 
for  the  time  being  of  these  presents]. 
Covenant  IX.  Each  of  them  the  said  A.  B.  and  C.  B.,  and  his  or  her  heirs, 

assurance,  executors,  and  administrators  shall  at  all  times  execute  and  do 
every  such  assurance  and  thing  as  by  the  other  of  them,  her  or  his 
heirs,  executors,  or  administrators  [or  by  the  trustees  or  trustee  for 
the  time  being  of  these  presents]  shall  be  reasonably  required  for 
the  purpose  of  giving  full  effect  to  these  presents  and  the  stipulations 
herein  contained, 
ifrecon-  X.  If  the  Said  A.  B.  and  C.  B.  shall  be  reconciled  and  return  to 

sho^id'take  cohabitation,^  [or  if  their  marriage  shall  be  dissolved,  or  they  shall 
deed^to^be  ^^  judicially  separated  by  reason  of  anything  done  by  either  party 
^°^*^"  after   the   date   of   these   presents],^  then,  and  in   such  case   the 

covenants,  agreements,  and  stipulations  hereinbefore  contained  shall 
forthwith  become  void,  except  in  respect  of  proceedings  for  a  breach 
thereof  previously  committed. 
Tru8tees.3  XL  [The  said  E.  F.  and  G.  H,  shall  be  the  trustees  of  these 

presents,  and  the  powers  and  authorities  hereby  vested  in  the 
trustees  or  trustee  for  the  time  being  of  these  presents  shall  devolve 
upon  and  be  exercisable  by  the  survivor  of  them  the  said  E.  F.  and 
G.  H.,  and  the  executors  or  administrators  of  such  survivor  or  other 
the  trustees  or  trustee  for  the  time  being  of  these  presents ;  And 
the  power  of  appointing  a  new  trustee  of  these  presents  in  the  place 

1  See  Nicol  v.  Nicol,  31  Ch.  D.  524,  and  Re  Abdy,  [1895]  1  Ch.  455,  as 
to  effect  of  a  covenant  for  payment  of  an  annuity  contained  in  a  deed 
between  unmarried  persons.  As  to  what  constitutes  a  return  to  cohabita- 
tion, see  Bowell  v.  Rowell,  [1900]  1  Q.  B.  9. 

2  The  Court  has  power  in  the  former  case  to  alter  the  provisions  of  a 
separation  deed,  but  not  in  the  latter  (see  Gandy  v.  Gandy,  7  P.  D.  77, 168  ; 
Bisliop  V.  Bishop,  [1898]  P.  138  ;  and  Bowling  v.  Bowling,  ib.  228). 

3  This  clause  will  only  be  needed  if  powers  are  vested  in  the  trustees. 


SEWERS,  COMMISSIONERS  OF  365 

of  the  said  E.  F.,  or  of  any  trustee  appointed  in  his  place,  shall  be 
exercisable  by  the  said  A.  B.,  and  the  power  of  appointing  a  new 
trustee  in  the  place  of  the  said  G.  H.,  or  of  any  trustee  appointed  in 
his  place,  shall  be  exercisable  by  the  said  C.  B.] 
In  witness,  &c. 


Several  Fishery.— See  Fisheries. 

Several  Inheritance. — An  inheritance  conveyed  so  as  to 
descend  or  come  to  two  persons  severally  by  moieties,  etc.  (Tomlins, 
Law  Diet.). 

Severalty,  Estate  in.— This  is  the  ordinary  species  of 
ownership.  An  estate  is  said  to  be  held  in  severalty  where  a  person 
holds  it  in  his  own  right,  without  any  other  person  being  joined  or 
connected  with  him  therein.  It  is  thus  distinguished  from  an  estate 
held  in  joint-tenancy  {q.v.),  in  coparcenary  (see^  Parceners),  or  in  com- 
mon (see  Tenancy  in  Common). 

Sewer. — See  Drains  and  Sewers;  Sewers,  Commissioners  of. 

Servers,  Commissioners  of. — The  history  of  Com- 
missioners of  Sewers  has  been  discussed  under  the  heading  Drainage. 
It  is  proposed  in  the  present  article  to  deal  with  some  of  the  more 
important  practical  points  which  arise  in  administration  and  in  litiga- 
tion, and  particularly  with  those  relating  to  rating  and  to  the  powers 
of  Commissioners  to  restrain  interference  with  drainage  works  under 
their  jurisdiction. 

"  By  the  common  law  the  King  ought  of  right  to  defend  his  realm 
as  well  against  the  sea,  as  against  the  enemies,  that  it  should  not  be 
drowned  or  wasted"  (case  of  The  Isle  of  Ely,  10  Co.  Rep.  141a ;  77  E.  R. 
1139).  Among  the  Commissions  of  Oyer  and  Terminer,  therefore,  the 
King  granted  commissions  to  inquire  what  were  the  defaults  in  the 
maintenance  of  walls  and  sewers  and  what  amendments  were  necessary. 
The  Commissioners  were  not  empowered  at  common  law  to  construct 
new  works,  but  merely  to  compel  the  removal  of  obstructions  and  the 
execution  of  works  of  maintenance  and  repair.  Where,  however,  an 
old  wall,  by  the  violence  of  the  water,  was  broken  down  they  might 
construct  another  wall,  in  case  of  inevitable  necessity  to  defend  the 
level  {The  Isle  of  Ely  Case,  supra).  As  to  the  enlargement  of  their 
powers  by  statute  and  the  necessity  for  further  extension,  see  article 
on  Drainage. 

Eating. — The  principle  upon  which  Commissioners  of  Sewers  are 
entitled  to  rate  the  lands  within  their  jurisdiction  is  that  of  the 
possibility  of  receiving  benefit  or  of  averting  damage.  "  The  statute  " 
(6  Hen.  vi.  c.  5)  "  will  have  all  who  are  in  danger  or  who  are  to  receive 
benefit  by  the  making  of  the  banks  to  be  contributory,  for  qui  sentit 
commodum sentire  debet  et  onus"  {Rookes  Case,  5  Co.  Rep.  99 i;  77  E.  R. 
209).  The  same  principle  of  rating  is  embodied  in  the  Statute  of 
Sewers,  23  Hen.  viii.  c.  5.  In  R.  v.  Tower  Hamlets  Commissioners,  1829, 
9  B.  &  C.  517 ;  33  R.  R.,  at  p.  252,  it  is  said  by  Tenterden,  C.J. :  "The 
principle  has  always  been  laid  down  and  acted  on  that  no  person  is 


366  SEWEES,  COMMISSIONERS  OF 

to  contribute  to  the  expense  except  those  who  derive  benefit  from  it." 
So,  too,  Lord  Campbell,  in  Metropolitan  Board  of  Works  v.  Vauxhall 
Bridge  Co.,  1857,  7  E.  &  B.  964 ;  26  L.  J.  Q.  B.  253,  says :  "  Assessments 
under  a  sewer's  rate  must  have  regard  to  the  benefit  which  the 
property  derives  from  the  sewers,  and  property  which  derives  no  benefit 
is  not  liable  to  be  assessed."  The  same  view  was  more  recently  set 
forth  in  similar  words  by  Wright,  J.,  in  Knight  v.  Langport  D.  D.  B., 
[1898]  1  Q.  B.  592.  Upon  this  principle  Caliis  points  out  (223)  that 
"  those  grounds  which  be  upon  an  ascent,  and  not  on  the  level,  are  also 
by  the  rule  of  reason  exempted  from  assesses  to  be  imposed  only  by 
the  power  of  these  laws."  It  was,  however,  decided  by  the  Divisional 
Court  in  Somersetshire  Drainage  Commissioners  v.  Langport  D.  D.  B.  (1893, 
not  reported)  that  uplands  which  benefit  by  a  system  of  arterial  drainage 
as  a  whole,  because  it  carries  off  their  flood  water  more  quickly,  are 
rightly  assessed  for  reinstating  a  bank  forming  part  of  the  system, 
which  floods  have  burst  through  and  broken  down,  even  though  they 
derive  no  direct  or  immediate  benefit  from  such  actual  reinstatement 
itself.  "For  the  benefit  is  not  required  to  be  immediate,  nor  do  the 
cases,  or  the  commission  itself,  or  the  statutes  say  anything  of  the 
nature  or  amount  of  the  benefit"  {Soady  v.  Wilson,  1835,  3  A.  &  E.  248 ; 
followed  in  Hammersmith  Bridge  Go.  v.  Overseers  of  Hammersmith,  1871, 
L.  R.  6  Q.  B.  230 ;  40  L.  J.  M.  C.  79 ;  and  in  Baker  v.  Parry,  1905, 
L.  G.  R.  684).  The  question  of  benefit,  however,  is  a  question  of  fact, 
and  neither  the  presentment  of  a  jury  nor  the  order  of  Commissioners 
is  conclusive  against  anyone  who  wishes  to  dispute  it  {Neave  v.  Weather, 
1842,  3  Q.  B.  984 ;  Stafford  v.  Hamston,  1821,  2  Bro.  &  Bing.  691 ;  23 
R.  R.  543).  This  question  of  fact  may  be  raised  where  the  rate  is 
enforced  by  distress,  in  an  action  for  illegal  distress  {Baker  v.  Parry, 
supra). 

When  once  rateability  has  been  established  on  the  ground  that  there 
is  any  benefit  at  all,  the  quardum  of  benefit  is  immaterial,  and  the  sole 
question  is  the  amount  of  annual  value.  "  The  Commissioners  ought  to 
tax  all  who  are  in  danger  of  being  drowned  by  the  non-repairing  equally, 
and  not  him  who  has  the  land  next  adjoining  to  the  river  only  "  (Eooke's 
Case,  supra).  The  case  of  Knight  v.  Langport  D.  D.  B.,  supra,  reaffirmed 
the  principle  that  rates  must  be  assessed  equally  according  to  the  value 
of  the  lands,  and  not  differentially  in  proportion  to  the  amount  of  benefit 
they  respectively  receive.  With  the  exception  of  the  overruled  dictum 
in  the  Vauxhall  Bridge  Case,  1857,  7  E.  &  B.  964,  the  authorities  clearly 
lay  down  that  "rating  according  to  benefit"  does  not  apply  to  the 
quantum,  but  only  to  the  fact  of  benefit,  in  other  words,  that  if  property 
within  a  district  derives  no  benefit  at  all,  it  is  not  rateable,  but  if  it 
derives  some  benefit,  however  small  by  comparison  with  others,  or  in- 
direct, it  is  rateable  equally  with  the  others  in  proportion  to  its  annual 
value  (P.  V.  Head,  1863,  3  B.  &  S.  419  ;  32  L.  J.  M.  C.  115 ;  Pew  v. 
Metropolitan  Board  of  Works,  1865,  16  B.  &  C.  235;  Griffiths  v.  Longdon 
and  Eldersfield  D.  B.,  1871,  L.  R.  6  Q.  B.  738;  41  L.  J."Q.  B.  25).  The 
law,  as  laid  down,  does  no  doubt  sometimes  cause  hardship,  for  it  may 
be  that  the  more  valuable  property  may  derive  less  benefit  than  the 
less  valuable  property,  but  it  avoids  the  difficulty  of  assessing  each 
property  in  accordance  with  the  exact  proportion  of  benefit  derived 
from  the  works,  and  it  throws  the  burden  of  maintaining  works,  which 
are  for  the  general  benefit,  on  the  whole  level.  This  burden  is  appor- 
tioned according  to  the  general  rateability  of  those  who  occupy  or  own 


SEWEES,  COMMISSIONEES  OF  367 

property  in  the  district,  excepting  those  who  derive  no  benefit  what- 
ever. Upon  this  point  it  is  to  be  noticed  that  in  the  Statute  of  Sewers, 
23  Hen.  viii.  c.  5,  s.  3,  the  proportion  of  benefit  is  not  made  the  standard 
of  rating,  but  "  the  quantity  "  of  land,  etc.,  held  within  the  district  by 
persons  who  have  or  "  may  have  any  hurt,  loss,  or  disadvantage  "  from 
the  mischief  to  be  redressed.  These  words,  however,  do  not  mean  that 
the  rate  should  be  an  "acreage"  rate,  as  some  Commissioners  have 
wrongly  supposed,  but  have  always  received  the  construction  that  the 
rate  should  depend,  not  upon  the  superficial  extent  of  the  land  benefited, 
but  upon  its  annual  value  {Griffiths  v.  Longdon,  etc.,  supra).  The  Land 
Drainage  Act  of  1861,  s.  39,  indicates  the  poor  law  valuation  as  the 
proper  and  convenient,  though  not  necessarily  the  sole  and  compulsory, 
basis  of  the  assessment  according  to  annual  value.  Where,  by  reason 
of  the  character  and  situation  of  the  land,  there  are  separate  and 
distinct  levels,  one  of  which  does  not  derive  benefit  from  the  sewers 
in  the  other,  there  ought  to  be  separate  and  distinct  rates  for  each 
level  {R.  V.  Tower  Hamlets  Commissioners,  1843,  5  Q.  B.  357;  11  L.  J. 
Q.  B.  231).  The  Commissioners,  however,  have  power,  if  they  choose, 
to  connect  and  aggregate  distinct  levels  under  one  system  of  drainage 
and  rate  the  whole  according  to  annual  rateable  value  (St.  Katherine's 
Docks  V.  Higgs,  1847,  14  Q.  B.  348 ;  16  L.  J.  Q.  B.  377). 

Liabilities  ratione  tenures. — It  was  laid  down  in  Keighley's  Case,  1610, 
10  Co.  Rep.  139a;  77  E.  R.  1136,  overruling  certain  dicta  in  Rooke's  Case, 
1598,  5  Co.  Rep.  995 ;  77  E.  R.  207,  that  Commissioners  of  Sewers,  except 
in  certain  exceptional  cases  of  inevitable  necessity  {vide  infra),  have  only 
a  discretion  to  exercise  their  general  powers  of  rating,  where  and  so  far 
as  there  are  no  existing  liabilities  upon  the  part  of  individuals  ratione 
tenurce.  The  Land  Drainages  Act,  1861,  by  sec.  37,  expressly  saves  all 
such  existing  liabilities  to  defray  or  contribute  towards  the  expenses 
of  construction,  maintenance,  or  repair,  and  provides  that  "  the  rates 
to  be  levied  under  this  Act  shall  be  made  only  for  purposes  to  which 
such  a  liability  does  not  extend."  Callis  (114)  derives  the  particular 
and  individual  liabilities  to  repair  from — 1,  Frontage;  2,  ownership; 
3,  prescription ;  4,  custom ;  5,  tenure ;  6,  covenant ;  7,  usils  rei,  to  which 
he  adds  the  general  liabilities  to  repair  arising,  8,  in  the  case  of  a  town- 
ship and,  9,  by  the  laws  of  sewers.  The  exact  legal  origin  of  existing 
liabilities  to  repair  is  often  difficult  to  trace.  The  fact  of  their  exist- 
ence was  usually  established  before  the  Land  Drainage  Act,  1861, 
by  the  presentment  of  a  jury  at  a  Sewers  Court,  which  was  enforced 
by  an  order  of  the  Commissioners.  By  Statute  3  &  4  Will.  iv.  c.  22, 
s.  13,  it  was  enacted  that  successive  orders  of  the  Commissioners  might 
be  made  upon  the  same  presentment,  so  long  as  the  occupier  remained 
the  same,  but  not  where  there  had  been  a  change  in  the  occupation 
{R.  V.  Warton,  1862,  2  B.  &  S.  719).  Now,  by  sec.  33  of  the  Land 
Drainage  Act,  1861,  "Commissioners  of  Sewers,  acting  within  their 
jurisdiction,  may,  without  the  presentment  of  a  jury,  make  any  order 
in  respect  of  the  execution  of  any  work,  the  levying  of  any  rate,  or 
doing  any  act,  which  they  might  but  for  this  section  have  made  without 
such  presentment,"  subject  to  the  right  of  appeal  given  by  the  Act 
(s.  47)  to  "  any  person  aggrieved."  In  making  any  such  order,  however, 
they  are  acting  judicially,  and  an  order  made  by  Commissioners,  of  whom 
even  one  as  a  landowner  in  the  level  has  a  pecuniary  interest  in  the 
adjudication,  will  be  quashed  {Commissioners  for  Fobbing  v.  The  Queen, 
infra).     It  would  seem,  therefore,  that  for  any  such  order  to  be  valid, 


368  SEWEES,  COMMISSIONERS  OF 

it  must  either  be  made  under  the  old  procedure  of  presentment  by  a 
jury,  or  by  Commissioners  having  no  land  in  that  particular  level. 
Further,  the  Commissioners  must  act  upon  evidence ;  and  if  the  question 
be  as  to  the  existence  of  a  liability  to  repair  ratione  tenurce,  such  liability 
may  be  proved  primd  facie  by  showing  that  the  owners  and  occupiers 
have  for  a  long  time  done  repairs  upon  the  requisition  or  under  the 
compulsion  of  some  outside  authority  for  whose  claim  a  legal  origin 
can  be  presumed.  The  mere  fact  that  a  frontager  has  always  main- 
tained the  part  of  a  continuous  sea-wall  in  front  of  his  own  land  is  no 
evidence  per  se  of  any  such  liability,  as  it  is  consistent  with  his  having 
done  so  for  his  own  protection  (Hudson  v.  Tabor,  1877,  1  Q.  B.  D.  225 ; 
2  Q.  B.  D.  290),  which  also  established,  in  opposition  to  the  opinion  of 
Callis,  that  there  is  no  such  thing  as  a  frontager's  liability  at  common 
law.  The  evidence  adduced  to  prove  a  liability  by  custom,  prescription, 
or  tenure  may  be  the  parol  evidence  of  officials  or  servants  who  have 
enforced  such  liability,  or  it  may,  and  generally  to  a  large  extent  does, 
consist  of  the  ancient  orders  of  Courts  of  Sewers,  even  though  there 
may  be  no  proof  of  their  having  been  acted  upon  (B.  v.  Zeigh,  1840, 
10  A.  &  E.  398 ;  50  E.  E.  463).  The  presentments  of  juries,  as  touching 
matters  of  public  concern,  are  usually  admitted  in  evidence.  A  doubt 
was  raised  as  to  their  admissibility  in  the  case  last  cited,  but  in  B.  v. 
Bedfordshire  Inhabitants,  1855,  4  E.  &  B.  535 ;  24  L.  J.  Q.  B.  81,  Lord 
Campbell  laid  down  generally  that  evidence  of  reputation  is  admissible 
to  prove  a  liability  to  repair  ratione  tenurce. 

Extraordinary  Storm. — Apart  from  rateability  on  the  principle  of 
benefit  and  rateability  by  reason  of  liabilities  ratione  tenurce,  there  are 
certain  cases  which  of  mere  necessity  throw  the  charge  upon  the  level 
(Callis,  145).  Whenever  damage  is  occasioned  by  an  extraordinary 
flood  or  tempest,  without  any  default  upon  the  part  of  those  who  are 
liable  to  repair  ratione  tenurce,  the  burden  of  repairing  or  reinstating  the 
works  falls  upon  the  whole  level  {Fobbing  Commissioners  v.  The  Queen, 
1886,  11  App.  Ca.  462;  56  L.  J.  M.  C.  1;  Keighley's  Case,  1610,  10  Co. 
Eep.  139a ;  10  E.  E.  1136 ;  B.  v.  Somerset  Commissioners,  1799,  8  T.  E. 
312 ;  4  E.  E.  659 ;  B.  v.  Essex  Commissioners,  1823,  1  B.  &  C.  477 ;  2  D. 
&  Ey.  700  ;  Baker  v.  Barry,  supra ;  Callis,  146).  It  was,  however,  pointed 
out  in  B.  V.  Leigh,  supra  (explained  in  Fobbing  v.  The  Queen,  supra), 
that  a  larger  liability  ratione  tenurce  to  repair  even  against  extra- 
ordinary storms  might  conceivably  exist  in  law,  if  proved  by  evidence. 
Callis  (145-149)  mentions  certain  other  cases  where  the  charge  falls 
upon  the  whole  level,  e.g.  where  the  persons  liable  by  prescription, 
custom,  or  tenure  are  unascertainable  for  want  of  evidence  or  otherwise, 
or  when  the  persons  chargeable  are  not  able  to  do  the  work,  or  where 
the  lands  in  respect  of  which  the  liability  arises  "  are  devoured  or  over- 
thrown by  the  sea,"  or  where  the  tenure  has  been  ended  by  escheat.  In 
all  these  cases  the  burden  is  cast  on  the  whole  level  by  inevitable  neces- 
sity, "  for  otherwise  it  may  be  all  the  country  will  be  drowned  "  {Keighleys 
Case,  supra). 

Incidence  of  Bates. — All  costs,  charges,  and  expenses  for  administra- 
tion and  management,  including  costs  of  litigation,  even  where  it  specially 
affects  particular  localities,  are  a  general  charge  leviable  by  a  general 
rate  upon  the  occupiers  of  the  whole  level.  By  the  Land  Drainage  Act, 
1861,  all  rates  for  improvements  or  new  construction,  where  the  costs 
exceed  £1000,  are  raised,  subject  to  certain  consents,  by  a  special  rate 
leviable  upon  owners  (s.  38  (1)),  but  these  provisions  as  to  special  rates 


SEWEKS,  COMMISSIONEES  OF  369 

are  sometimes  varied  by  local  Acts.  All  other  rates  are  general  rates 
leviable  primarily  upon  occupiers,  but  without  affecting  any  special 
agreements  between  landlord  and  tenant.  In  Griffiths  v.  Longdon,  etc., 
supra,  it  was  held  that  the  cost  of  surveys  and  plans  for  certain  proposed 
works,  which  were  to  cost  over  £1000  but  were  not  in  fact  executed, 
should  be  raised  by  a  general  rate  upon  occupiers. 

Commutation. — Attempts  have  been  made  to  provide  by  statute  for 
the  commutation  of  individual  liabilities  ratione  tenurce  to  repair.  The 
Land  Drainage  Act,  1861,  s.  34,  provided  that  this  might  be  done  with 
the  consent  of  the  Inclosure  Commissioners,  now  the  Board  of  Agricul- 
ture, but  the  provision,  not  being  compulsory,  has  seldom  been  acted 
upon.  By  certain  local  Acts  the  power  to  commute  has  been  turned 
into  a  duty,  e.g.  the  Somersetshire  Drainage  Act,  1877,  ss.  59-65 ; 
Caldicot  and  Wentlooge  Level  Act,  1884,  ss.  6  and  10. 

Statute  4  &  5  Vict.  c.  45,  was  passed  to  legalise  taxing  communities 
collectively  or  "in  the  gross"  for  certain  specified  establishment  and 
administrative  purposes  in  consequence  of  the  decision  in  Emerson  v, 
Saltmarshe,  1837,  following  the  decision  in  the  The  Isle  of  My  Case, 
supra,  declaring  such  taxation  illegal :  but  the  rating  procedure  under 
this  Act  is  usually  found  less  convenient  than  that  provided  for  by 
sees.  33  and  38  of  the  Land  Drainage  Act,  1861.  The  powers  of  the 
Commissioners  for  the  enforcement  of  rates  and  recovery  of  fines  are 
chiefly  provided  for  by  Statute  12  &  13  Vict.  c.  50,  s.  7.  A  decision  on 
a  doubtful  question  of  law  can  often  be  obtained  by  the  Commissioners 
making  an  order,  in  lieu  of  a  presentment,  under  sec.  33  of  the  Land 
Drainage  Act,  1861.  "Any  person  aggrieved"  has,  under  sec.  47,  an 
appeal  against  this  order  to  Quarter  Sessions,  where  a  case  may  be 
stated  for  the  High  Court.  By  sec.  11  of  Baines  Act,  1849,  power  is 
given  to  the  parties  to  state  a  special  case  by  consent,  after  notice  of 
appeal,  without  actually  going  before  the  Court  of  Quarter  Sessions. 

Commissioners  of  Sewers  have  a  Court  of  Efecord,  and,  according  to 
Callis  (167-170),  have  powers  of  imprisonment,  at  all  events  for  con- 
tempt committed  in  the  face  of  the  Court.  They  are  expressly 
empowered  "to  make,  constitute,  and  ordain  laws,  ordinances,  and 
decrees"  (23  Hen.  viii.  c.  5,  s.  7)  according  to  their  "wisdoms  and 
discretions,"  which,  however,  "are  to  be  intended  and  interpreted 
according  to  law  and  justice,  for  every  judge  or  Commissioner  ought  to 
have  duos  sales,  viz.,  salem  sapientice,  ne  sit  insipidus  et  salem  conscientice, 
ne  sit  diabolus"  (10  Co.  Rep.  140a;  77  E.  R.  1139).  They  are  further 
empowered  to  compel  obedience  from  those  found  "  negligent,  gainsay- 
ing, or  rebelling,"  by  "distress,  fines,  and  amerciaments,  or  other 
punishments,"  but  only  when  each  of  these  remedies  respectively 
"  properly  lieth  by  rules  of  law,"  for  it  would  be  contrary  to  Magna 
Charta,  c.  29,  to  imprison  a  man's  body  for  mere  disobedience  to  an 
order  (Oldherry,  Inhabitants  of,  v.  Stafford,  1663,  1  Sid.  145 ;  82  E.  R. 
1022). 

Powers  to  Sue  as  a  Corporation  and  to  Restrain  Interference  with 
Woi'ks. — By  Statute  3  &  4  Will.  iv.  c.  22,  s.  57,  Commissioners  of 
Sewers  are  made  a  quasi-corporation  with  perpetual  succession  for 
the  purpose  of  suing  or  being  sued  in  the  name  of  any  one  Com- 
missioner or  in  the  name  of  their  clerk,  and  by  sec.  47  they  are 
empowered  to  bring  actions  and  prefer  indictments.  It  was  at  one 
time  held  not  only  that  the  property  in  drainage  works  did  not 
vest  in  Commissioners  of  Sewers,  but  that  they  had  not  even  such 
VOL.  XIII.  24 

/ 


370  SEXTON 

a  possession  as  would  enable  them  to  bring  an  action  of  trespass 
against  wrong-doers,  e.g.  for  pulling  down  a  dam  erected  by  Com- 
missioners across  a  navigable  stream  {Duke  of  Newcastle  v.  Clark,  1818, 
8  Taunt.  602;  S.  C.  2  B.  Moore,  666.  See  also  Hollis  v.  Goldfinch, 
1823,  1  B.  &  S.  205 ;  S.  C.  2  Dow.  &  Ky.  316 ;  20  R  R.  583 ;  Callis,  73). 
Statute  3  &  4  Will.  iv.  c.  22.  s.  47,  was  no  doubt  enacted  in  consequence 
of  those  cases,  and  provides  "that  the  property  of  and  in  all  lands, 
buildings,  erections,  works,  and  other  things  which  have  been  or  shall 
hereafter  be  purchased,  obtained,  erected,  constructed  and  made  by  or 
by  the  order  of,  or  shall  he  under  the  vieiv,  cognisance,  or  management 
of  any  Commissioners  of  Sewers  shall  be  and  are  hereby  vested"  in 
them.  A  narrow  construction  was  put  on  these  words  in  Stracey  v. 
Nelsmi,  1844,  12  M.  &  W.  535 ;  13  L.  J.  Ex.  97,  where  the  object  of  the 
Act  was  held  to  be  to  vest  lands  "  bought "  and  works  "  made "  (not 
merely  maintained  or  repaired)  by  the  Commissioners,  and  to  give  them 
perpetual  succession  as  a  corporation.  But  in  Grossman  v.  Bristol  and 
S.-W.  Ely.,  1863,  1  H.  &  M.  531 ;  11  W.  R.  981 ;  71  E.  R.  233,  it  was 
held  by  Page  "Wood,  V.-C,  that  the  section  vests  in  the  Commissioners 
a  special  property  in  "  all  works  natural  or  artificial "  over  which  they 
have  jurisdiction,  so  as  to  enable  them  to  maintain  an  action  for  an 
injunction  to  restrain  the  removal  of  shingle  from  a  beach.  The  case  of 
A.-G.  V.  Tomline,  1879-80,  12  Ch.  D.  214;  48  L.  J.  Ch.  493;  14  Ch.  D. 
58 ;  49  L.  J.  Ch.  377,  makes  it  clear  that  a  private  individual  who  owns 
a  bank  or  other  natural  defence  against  the  sea  or  floods  will  be 
restrained  from  doing  anything  which  would  impair  its  character  as  a 
defence  or  lessen  its  security.  It  is  the  duty  of  the  Crown  to  maintain 
such  a  defence  unimpaired,  and  the  Crown  could  only  grant  land 
subject  to  this  obligation.  If,  in  the  course  of  time,  the  position  of 
the  foreshore  or  other  natural  defence  is  by  natural  causes  shifted,  the 
duty  to  maintain  the  shifted  defence  would  appear  to  be  shifted  with 
it.  In  West  Norfolk  Farmers  v.  Archdale,  1886,  16  Q.  B.  D.  754,  it 
was  apparently  held  that  if  Commissioners  of  Sewers  "took  to"  and 
exercised  jurisdiction  over  a  bank,  it  would  vest  in  them,  under  sec.  47 
of  3  &  4  Will.  IV.  c.  22.  But  Stracey  v.  Nelson  seems  not  to  have  been 
cited  in  Grossman  v.  Bristol  and  S.-  W.  Bly.,  and  neither  of  these  cases 
seem  to  have  been  referred  to  in  West  Norfolk  Farmers  v.  Archdale. 
The  question  of  a  limited  "  vesting  "  therefore  is  not  free  from  difficulty, 
and  it  may  possibly  be  safer  for  Commissioners  of  Sewers  to  join  the 
Attorney- General  in  an  action  for  an  injunction  to  restrain  appre- 
hended interference  with  a  natural  defence.  The  removal  of  "  shingle 
or  ballast "  is  sometimes  restrained  by  summary  procedure,  under  the 
Harbours  Act,  1814,  s.  14,  where  an  order  has  been  made  prohibiting 
such  removal  by  the  Board  of  Trade. 

\_Authorities. — Callis  on  Sevjers ;  TJie  Laiv  of  Land  Drainage  and 
Sewers,  Kennedy  and  Sanders,  1884.] 

Sexton. — The  word  "sexton"  is  probably  identical  with  segsten, 
segerstane,  sacristan,  saxton  (Latin  sacrista,  the  keeper  of  holy  things 
for  divine  worship).  The  office  of  sexton,  which  originally  was  the 
same  as  that  of  ostiarius,  in  the  continental  portion  of  the  Catholic 
Church  of  the  West  varies  in  practice  in  different  parishes. 

Properly,  the  duties  of  the  sacristan  or  sexton  consist  in  the  care 
of  the  sacred  vessels  and  vestments  of  the  church,  in  keeping  the  interior 
of  the  church  and  the  pews  clean,  and  in  lighting  the  church  when 


SEXT0:N'  371 

necessary,  in  opening  and  shutting  doors,  in  ringing  the  church  bells 
when  occasion  requires ;  he  is  also  properly  the  officer  to  prepare  the 
altar  or  Holy  Table,  to  provide  the  elements  for  Holy  Communion 
(though  this  duty  is  more  commonly  performed  by  the  parish  clerk), 
the  water  for  baptizing ;  to  furnish  minor  necessaries  for  the  church ; 
and  these  duties,  in  parish  churches  and  district  chapelries,  he  performs 
under  the  direction  of  the  churchwardens.  He  also  keeps  the  keys 
of  the  church  for  the  incumbent,  and  has  the  care  of  the  churchyard. 
He  also  makes  and  fills  up  the  graves  for  the  dead. 

The  office  of  sexton  or  sacristan  remains  in  its  original  position  in 
some  of  the  cathedrals,  where  it  is  held  by  a  minor  canon ;  in  different 
parishes  at  the  present  time  the  duties  vary  by  custom  ;  in  some  places 
the  duties  are  limited  to  bell-ringing,  grave-digging,  and  the  doing  of 
such  manual  work  as  may  be  necessary  in  connection  with  the  church 
and  churchyard  (Johnson,  Clergyman's  Vade  Mecum,  vol.  i.  227 ;  B.  v. 
Inhabitants  of  Liverpool,  1789,  3  T.  E.  118).  One  reason  why  the 
duties  of  the  sexton  have  in  many  places  become  so  circumscribed,  is 
to  be  found  in  the  fact  that  many  of  the  old  duties  of  the  sacristan  have 
fallen  to  the  parish  clerk,  which  office,  however,  is  often  held  in 
conjunction  with  that  of  sexton. 

The  right  of  appointing  the  sexton  at  common  law  is  said  to  be 
vested  in  the  incumbent  {B.  v.  Minister  and  Churchwardens  of  Stoke 
Damerel,  1836,  5  Ad.  &  E.  584);  but  this  was  doubted  by  the  Court  in 
Cransfield  v.  Blenkinsop,  1849, 4  Ex.  Rep.  234,  and  the  opinion  was  there 
expressed  that  the  presumption  is  that  where  the  duties  of  the  sexton 
are  confined  to  the  care  of  the  church  and  the  vestments,  the  right 
of  appointment  is  vested  in  the  churchwardens ;  but  that  where  the 
duties  are  confined  to  a  graveyard,  the  right  of  appointment  is  in  the 
incumbent,  in  whom  the  fee  simple  estate  in  the  churchyard  is  vested ; 
and  that  where  the  duties  extend  to  both,  the  right  is  vested  in  both 
the  incumbent  and  churchwarden  jointly.  By  custom,  however,  the 
sexton  may  be  chosen  by  the  parishioners,  and  a  lord  of  a  manor  by 
prescription  may  have  the  right  to  make  the  appointment  (Soane  v. 
Ireland,  1808,  10  East,  259 ;  10  R  R.  285). 

The  office  of  sexton  is  generally  a  freehold  office  (He's  Case,  1671, 
1  Vent.  153;  86  E.  R.  104),  but  there  may  be  a  custom  for  the 
parishioners  to  remove  him  at  pleasure  (B.  v.  The  Churchwardens  of 
Taunton  St.  James,  1776,  1  Cowp.  413).  He  may  be  censured  by  the 
Ordinary ;  but  the  Ecclesiastical  Court  has  not,  it  appears,  any  power 
to  remove  him. 

The  sexton  in  some  parishes  is  entitled  to  certain  customary  fees ; 
where  he  receives  any  further  salary,  such  salary  is  settled  by  the 
vestry  and  paid  to  him  by  the  churchwardens.  A  woman  may  be  a 
sexton;  and  where  the  office  is  elective,  women  may  vote  at  the 
election  {Olive  v.  Ingram,  1725,  2  Stra.  1114). 

If  a  sexton  is  improperly  removed  from  office,  a  mandamus  lies  to 
restore  him  {lies  Case,  supra;  B.  v.  Churchwardens  of  Thame,  1719, 
1  Stra.  115). 

A  sexton  may  perform  his  duties  by  deputy  {Burial  Board  of  St. 
Margaret's,  Bochester  v.  Thompson,  1871,  L.  R.  C.  P.  445).  As  to  the 
salary  of  the  sexton  under  the  Church  Building  Acts,  see  59  Geo.  III. 
c.  134,  ss.  6,  10,  11 ;  5  Geo.  iv.  c.  103,  s.  5 ;  1  &  2  Will.  iv.  c.  30,  s.  16. 
The  position  of  the  sexton  under  these  Acts  is  the  same  as  that  of  the 
parish  clerk  (see  article  Parish  Clerk).    Under  the  New  Parishes  Acts 

/ 


372  SEYCHELLES 

(6  &  7  Vict.  c.  37 ;  7  &  8  Vict.  c.  94 ;  and  19  &  20  Vict.  c.  104)  a  sexton 
appointed  to  the  church  of  any  parish  constituted  thereunder,  shall 
and  may  be  appointed  by  the  incumbent  for  the  time  being  of  such 
church,  and  be  by  him  removable,  with  the  consent  of  the  bishop  of 
the  diocese,  for  any  misconduct  (19  &  20  Vict.  c.  104,  s.  12). 

The  rights  of  a  sexton  of  a  parish  to  perform  the  duties  in  a  burial- 
ground  established  under  the  Act  15  &  16  Vict.  c.  85,  which  he  formerly 
performed  in  the  churchyard  of  the  parish,  are  preserved  by  that 
statute  (s.  31) ;  and  a  sexton  may  therefore  enter  upon  a  burial-ground 
without  the  consent  of  the  Burial  Board,  and  toll  the  bell  of  the  chapel 
and  perform  his  other  duties  in  connection  with  a  funeral,  if  the  circum- 
stances are  such  that  he  would  have  been  entitled  to  perform  similar 
duties  in  the  old  parish  churchyard. 

[Authorities. — Johnson,  Clergyman's  Vade  Mecnim ;  Phillimore,  Ecd. 
Law,  2nd  ed. ;  Shaw,  Parish  Law ;  Prideaux,  Churchwarden's  Guide, 
16th  ed.] 

Seychelles. — Area. — The  .Seychelles  Islands  in  the  Indian 
Ocean  are  made  up  of  89  islands  (see  schedule  to  Letters  Patent  of  1903, 
St.  E.  &  O.,  Eev.  1904,  vol.  xi.,  "  Seychelles,"  p.  5),  of  which  Mahe  is  by 
far  the  largest,  and  have  a  total  area  of  156  square  miles,  or  a  little 
larger  than  Rutland. 

Constitutional  Histoi'y. — The  islands  were  discovered  by  the  Portuguese 
in  1505,  taken  possession  of  by  the  French  in  1743,  and  in  1756  received 
their  present  name  in  honour  of  the  French  Minister  of  Finance.  Mah6 
was  captured  by  the  English  in  1794,  but  it  was  not  till  1810,  when 
Mauritius  {q.v.)  was  captured,  that  the  Seychelles  were  formally  taken 
possession  of  and  annexed  to  that  colony. 

By  Order  in  Council  of  April  22,  1872,  a  Board  of  Civil  Commis- 
sioners for  the  islands  were  established,  with  power  to  make  regulations 
for  the  government  of  the  islands.  The  powers  of  the  Board  were 
enlarged  by  Order  in  Council  of  January  26,  1874  (St.  R.  &  0.,  Eev., 
1st  edit.,  vol.  viii.,  p.  547),  and  by  the  Mauritius  Ordinance,  No.  4  of 
1882.  By  Order  in  Council  of  December  17,  1888  {ibid.,  p.  552), 
and  Letters  Patent  of  December  27,  1888  {ihid.,  p.  554),  the  powers  of 
the  Chief  Commissioner  were  transferred  to  an  Administrator,  and  an 
Executive  and  Legislative  Council  established  for  the  Seychelles,  but  the- 
power  of  the  Mauritius  legislature,  and  of  His  Majesty  in  Council,  to- 
legislate  for  the  Seychelles  was  reserved.  By  Letters  Patent  of  July  21,. 
1897  (St.  E.  &  0.,  1897,  p.  676),  amended  in  1901  (St.  E.  &  0.,  1901, 
p.  539),  the  Administrator  was  given  the  powers  of  a  colonial  Governor. 
Finally,  by  Letters  Patent  of  August  31,  1903  (St.  E.  &  0.,  Eev.  1904, 
vol.  xi.,  "  Seychelles,"  p.  1),  the  Seychelles  were  separated  from  Mauritius- 
and  erected  into  a  separate  colony  as  from  November  9,  1903. 

Present  Constitution. — The  Constitution  is  laid  down  by  the  Letters- 
Patent  of  1903  (see  above).  There  is  a  Governor,  assisted  by  an 
Executive  Council  of  three  officials,  and  a  nominated  Legislative 
Council,  and  the  Constitution  is  therefore  of  the  strict  "  Crown  colony  " 
type  (see  article  Colony,  Vol.  III.  p.  193). 

Laws. — The  laws  of  the  colony  consist  of  the  French  Civil  Code,. 
Code  of  Civil  Procedure,  and  Commercial  Code  of  1814,  various  ancient 
Arret6s  of  the  French  Government  prior  to  1814,  the  Ordinances  of 
Mauritius  prior  to  the  severance  of  the  Seychelles  from  Mauritius, 
Regulations  passed  by  the  Board  of  Civil  Commissioners  from  1872  to. 


SHALL  373 

1889,  and  the  Seychelles  Ordinances,  which  include  a  Penal  Code  based 
on  French  criminal  law  (see  the  Seychelles  Legislature  Order  in  Council, 
1903,  St.  E.  &  0.,  Eev.  1904,  vol.  xi.,  "Seychelles,"  p.  7),  declaratory  of 
the  law  in  force.  The  legislature  can  alter  any  of  the  colonial  laws 
except  Mauritius  Ordinances,  No.  14  of  1898  and  No.  36  of  1900  {ibid.). 
A  collective  edition  of  Regulations  passed  by  the  Board  of  Civil  Com- 
missioners was  published  in  1894,  and  in  the  same  year  a  collection  of 
Ordinances  passed  during  the  years  1889  to  1893  (inclusive);  both 
collections  contain  a  table  of  contents,  but  no  index.  The  Seychelles 
laws  have  been  revised  up  to  the  end  of  1906,  and  are  published  in 
three  volumes  with  an  index.  The  Ordinances  (except  private  ones) 
are  numbered  by  reference  to  the  calendar  year,  have  "short  titles," 
and  are  promulgated  by  publication  in  the  Government  Gazette. 

Courts  of  Law. — By  Mauritius  Ordinance,  No.  22  of  1853,  there  was 
established  a  District  Court,  which  under  the  Order  in  Council  of  1888 
(above)  became  the  Court  of  the  Seychelles.  Its  jurisdiction  was 
increased  by  the  1874  Order  (see  above),  by  various  Ordinances,  and  by 
the  Judicature  Order  in  Council,  1899,  and  it  was  finally  reconstituted 
as  "the  Supreme  Court  of  Seychelles"  by  the  Seychelles  Judicature 
Order  in  Council,  1903  (St.  R.  &  O.,  Kev.  1904,  vol.  ix.,  "  Seychelles," 
p.  9).  Under  this  Order  the  Court  has  the  jurisdiction  of  the  High 
Court  in  England  (s.  6),  is  a  Court  of  Equity  (s.  7),  a  Colonial  Court  of 
Admiralty  (s.  8),  and  a  Criminal  Court  (s.  10).  But  jurisdiction  as  to 
capital  offences  is  vested  in  the  Court  of  Assize,  consisting  of  the  Chief 
Justice  and  special  Assessors,  and  such  trials  are  specially  regulated  by 
the  Seychelles  Capital  Offences  Order  in  Council,  1903  {ibid.,  p.  15). 
The  Supreme  Court  is  also  the  Court  of  Appeal  from  all  the  other 
Courts  of  the  colony  (Judicature  Order,  s.  11). 

Appeals  from  the  Supreme  Court  lie  to  the  Supreme  Court  of 
Mauritius,  and  in  certain  cases  to  His  Majesty  in  Council,  and  are 
regulated  by  sees.  14-18  of  the  Judicature  Order,  1903  (above),  and  sees. 
109,  112  of  the  Capital  Offences  Order  and  the  Mauritius  Judicature 
(Seychelles  Appeals)  Order  in  Council,  1904  (St.  R.  &  0.,  1904, 
p.  690). 

Application  of  Imperial  Acts. — By  Treasury  Determination  of 
October  16,  1902  (St.  R.  &  0.,  Rev.  1904,  vol.  ix.,  "Pension  and  Half- 
Pay,"  p.  27),  the  revenues  of  the  Seychelles  have  been  made  available 
for  superannuation  purposes.  For  coinage  and  other  orders  issued  as 
to  Mauritius  before  the  severance  of  the  Seychelles  therefrom,  see 
Mauritius. 

[^Authorities.  —  Colonial  Office  List ;  the  Seychelles  Ordinances ; 
Journal  of  Comparative  Legislation,  vol.  ii.  p.  274.] 

Shack,  Common  of  .—See  Pasture. 

Shall. — This  word  may  denote  futuritij,  as  in  the  phrase  "shall 
be  born,"  which  in  the  absence  of  a  controlling  context  is  to  be  so  con- 
strued {Gibbons  v.  Gibbons,  1881,  50  L.  J.  P.  C.  45,  49) ;  but  in  various 
collocations  where  the  use  of  the  word  would  seem  to  import  futurity, 
a  much  less  restricted  construction  has  been  placed  upon  it.  Thus  the 
phrase  "  shall  become  bankrupt "  in  a  divesting  clause  has  been  read  as 
meaning  "  being  bankrupt,"  and  it  was  held  to  be  immaterial  whether 
the  bankruptcy  occurred  before  or  after  the  date  of  the  instrument 
which  contained  such  divesting  clause  {Seymour  v.  Lucas,  1860,  29  L.  J. 
Ch.  841,  843). 


374      SHALL  AND  LAWFULLY  MAY;  SHALL  AND  MAY 

The  word  is  also  used  as  implying  direction  or  command.  Where  in 
a  statute  it  is  provided  that  something  "shall"  be  done,  this,  primd 
facie,  is  to  be  construed  as  a  peremptory  command,  "but  where  the 
thing  has  reference  to  (a)  the  time  or  formality  of  completing  any  public 
act,  not  being  a  step  in  a  litigation  or  accusation,  or(&)  the  time  or  formality 
of  creating  an  executed  contract  whereof  the  benefit  has  been,  or  but  for 
their  own  act  might  be,  received  by  individuals  or  private  companies  or 
private  corporations,  the  enactment  will  generally  be  regarded  as  merely 
directory,  unless  there  be  words  making  the  thing  done  void  if  not  done 
in  accordance  with  prescribed  requirements  "  (Stroud,  Jud.  Diet.,  where 
the  numerous  cases  on  the  subject  are  collected  and  classified). 

Shall  and  lawfully  may;  Shall  and  may.— "The 

words  '  shall  and  lawfully  may '  are  in  their  ordinary  import  obligatory, 
and  ought  .  .  .  according  to  established  rule,  to  have  that  construction, 
unless  it  would  lead  to  some  absurd  or  inconvenient  consequence,  or  be 
at  variance  with  the  intent  of  the  legislature,  to  be  collected  from  other 
parts  of  the  Act"  (Chapman  v.  Milvain,  1850,  19  L.  J.  Ex.  228,  230). 

As  to  meaning  of  phrase  in  Solicitors  Act,  1843,  see  In  re  Kelly y 
[1895]  1  Q.  B.  180. 

Share  and  Share  M\\^e,—^QQ^IU.,  Judicial  Glossary. 

Shares. — See  Company;  Will,  Judicial  Glossary. 

Shed. — See  article  Tent,  Van,  Shed. 

Sheep. — As  to  injuries  to  sheep  by  dogs,  see  Dogs. 

Sheep,  as  well  as  beasts  of  the  plough,  are  conditionally  privileged 
from  distress.  The  Statute  51  Hen.  in.  stat.  4,  provides  that  such 
animals  are  not  to  be  distrained  (except  when  damage  feasant)  while 
there  is  other  sufficient  distress  to  be  found. 

The  liability  of  railway  and  canal  companies,  in  respect  of  loss  or 
injury  occasioned  by  the  neglect  or  default  of  their  servants  to  sheep 
and  certain  other  animals  in  the  course  of  receiving,  forwarding,  or 
delivering  them,  is  limited  to  the  amounts  specified  in  the  Eailway  and 
Canal  Traffic  Act,  1854,  s.  7 — the  amount  for  sheep  being  £2  per  head 
— unless  a  greater  value  has  been  declared  thereon  by  the  consignor. 

By  Sched.  13  to  the  Merchant  Shipping  Act,  1894,  which  regulates 
the  number  of  animals  that  may  be  carried  on  board  emigrant  ships,  it 
is  provided  that  four  sheep  are  to  be  deemed  equivalent  to,  and  may  be 
carried  in  lieu  of,  one  head  of  large  cattle. 

As  to  dipping  of  sheep,  see  Contagious  Diseases  (Animals)  Act,  1903, 
3  Edw.  VII.  c.  43,  and  orders  made  thereunder,  which  are  published  in 
the  Gazettes. 

Sheep  Silver. — Anciently  some  tenants  had  to  perform  the 
service  of  washing  their  lord's  sheep,  and  this  service  was  afterwards 
commuted  into  a  money  payment,  which  received  the  name  of  sheep 
silver  (see  Harrison's  Case,  1633,  Sir  Wm.  Jones's  Eep.  280). 

Sheep-stealing'. — This  offence  was  (14  Geo.  n.  c.  6)  made 
felony  without  benefit  of  clergy.  It  is  now  punishable  by  penal 
servitude  from  three  to  fourteen  years,  or  imprisonment  with  or  with- 


SHEKIFF 


375 


but  hard  labour  for  not  over  two  years  (24  &  25  Vict.  c.  96,  ss.  10,  11 ; 
54  &  55  Vict.  c.  69,  s.  1);  and  see  Animals  ;  Larceny. 

Sheffield  Marks.— See  Teade  Marks.  ^^ 


Sheriff. 


TABLE  OF  CONTENTS. 


(6)  County  Court    . 
(c)  Sheriff's  Tourn  . 

.  377 
.     377 

Executive  Functions 

.     377 

Deputies 

Fees        .... 

.  379 
.     379 

Finance  .... 

.     379 

Introfiuction 375 

Appointment  and  Tenure  of  OflBce  375 
Borough  Sheriffs  ....  376 
Parliamentary  Elections  .  .  376 
Judicial  Functions  .  .  .377 
(a)  Criminal  Justice        .         .     377 

Introduction.  —  The  Latin  name  for  sheriflF  (vicecomes)  has  created  an 
erroneous  impression  that  he  was  the  deputy  of  the  earl  (comes) ;  but  the 
latter  officer,  since  the  time  of  legal  history,  has  had  nothing  to  do  with 
the  government  of  any  county  which  was  not  palatine,  and  the  sheriff  was 
at  common  law  governor  of  the  shire,  captain  of  its  forces,  president  of  its 
Court — a  royal  officer  appointed  by  the  King,  dismissible  at  his  pleasure, 
and  strictly  accountable  to  the  Exchequer  (1  Pollock  and  Maitland,  Hist. 
Eng.  Law,  529),  and  the  use  of  the  term  vicecomes  is  a  mere  attempt  to 
translate  the  name  of  the  most  nearly  corresponding  Saxon  official  {scyre 
gerefa).  On  the  creation  of  the  commission  of  the  peace  and  the  lord- 
lieutenancy,  and  on  the  transfer  to  the  latter  as  castos  rotulorum  of  the  county 
records,  and  as  deputy  of  the  Crown  of  the  control  of  the  militia  or  organised 
force  of  the  county,  the  position  of  the  sheriff  was  ^o  tanto  diminished,  and 
a  controversy  has  long  existed,  which  seems  still  unsettled,  as  to  the  rights 
of  precedence  inter  se  of  these  two  officers  (Mather,  Sheriff  Law,  p.  9). 

To  treat  in  detail  the  office  of  sheriff  would  be  to  give  a  history  of  the 
development  of  central  and  local  authority  in  England,  and  within  the  limits 
of  this  article  it  is  only  possible  to  indicate  the  present  status  of  the  officer. 
He  has  been  the  subject  of  much  legislation,  the  chief  part  of  which  is 
repealed  and  consolidated  by  the  Sheriffs  Act,  1887,  50  &  51  Vict.  c.  55. 
See  the  schedule  to  that  Act. 

Appointment  and  Tenure  of  Office. — At  common  law  the  office  of 
sheriff  was  not  hereditary  like  the  Norman  viscounty,  but  in  certain 
counties  and  liberties  became  so  or  was  held  in  fee  (13  &  14  Vict.  c.  105, 
8.  2).  Under  the  provisions  of  Oxford  (1288)  and  the  Articuli  Super 
Chartas,  1300,  28  Edw.  i.  c.  13,  art.  8,  it  was  directed  that  the  office 
should  be  annual,  and,  like  that  of  coroner,  elective ;  but  since  1340 
(9  Edw.  II.  St.  2)  the  appointment,  though  annual,  has  been  made  sub- 
stantially as  at  present  (2  Stubbs,  Const.  Hist.,  225  ;  Fortescue,  Be  Legg, 
Anglice  ;  50  &  51  Vict.  c.  55,  ss.  3-6). 

Every  county,  whether  a  county  at  large  or  a  county  of  a  city,  has 
its  sheriff.  The  latter  are  not  within  the  bailiwick  of  the  sheriff  of 
the  county  in  which  they  lie  (1  Stubbs,  Con^t.  Hist.,  700).  Huntingdon 
and  Cambridge  have  one  sheriff  between  them,  who  exercises  no  power 
in  the  Isle  of  Ely  except  to  summon  juries,  the  Isle  having  a  chief 
bailiff  appointed  by  the  Crown,  who  acts  in  all  other  respects  as  sheriff 
(34  &  35  Hen.  viii.  c.  24;  16  &  17  Will.  iv.  c.  87,  ss.  12,  15;  50  &  51 
Vict.  c.  55,  s.  32). 

Middlesex,  until  1889,  had  no  separate  sheriff.  Since  then  it  has 
one  like  any  other  county  (see  London  City,  Vol.  VIII.  p.  403 ;  51  & 
52  Vict.  c.  41,  ss.  46  (6),  113  (2)). 


376  SHERIFF 

In  Lancaster  the  sheriff  is  appointed  by  the  King  as  Duke  of 
Lancaster,  in  Cornwall  by  the  Prince  of  Wales  as  Duke  of  Cornwall 
{The  Princes  Case,  1606,  8  Co.  Eep.  1 ;  Rowe  v.  Brenton,  1828,  3  Man.  & 
Ry.  133,  364). 

So  long  as  the  bishopric  of  Durham  was  palatine  the  appointment 
of  the  sheriff  was  in  the  bishop.  It  passed  to  the  Crown  in  1836  (6  & 
7  Will.  IV.  c.  19).  The  shrievalty  of  Westmoreland  was  hereditary 
until  1850  (13  &  14  Vict.  c.  30). 

The  law  as  to  sheriffs,  except  as  to  the  mode  of  appointment,  was 
in  1887  made  uniformly  applicable  to  all  English  and  Welsh  counties 
and  boroughs  (50  &  51  Vict.  c.  55,  ss.  6,  31,  36,  37).  County  sheriffs 
are  not  appointed  for,  and  do  not  act  in,  a  county  of  a  city.  They  could 
not  act  in  liberties  or  franchises,  but  most  of  these  areas  have,  by  a 
gradual  process,  been  merged  for  purposes  of  sheriff,  etc.,  in  their 
counties,  e.g.  Pontefract  (8  &  9  Vict.c.  92);  Cinque  Ports  (18  &  19  Vict, 
c.  48,  s.  2) ;  Cashio  hundred  (37  &  38  Vict.  c.  45,  ss.  36-39) ;  and  the 
general  provisions  in  13  &  14  Vict.  c.  105  ;  50  &  51  Vict.  c.  55,  s.  19 
(1) ;  and  51  &  52  Vict.  c.  41,  s.  48.  The  Sheriffs  Act,  1887,  is  applied 
suh  modo  to  the  remaining  franchises  (50  &  51  Vict.  c.  55,  ss.  34,  35). 

The  procedure  for  the  selection  of  county  sheriffs  is  regulated  by 
sec.  6  of  the  Sheriffs  Act,  1887,  which  embodies  ancient  practice,  with 
the  modifications  rendered  necessary  by  the  merger  of  the  Court  of 
Exchequer  in  the  High  Court  (36  &  37  Vict.  c.  m).  On  12th 
November  in  each  year  the  Chancellor  of  the  Exchequer  and  certain 
other  Privy  Councillors  attend  at  the  Eoyal  Courts  of  Justice  with 
the  judges,  and  a  list  of  names  of  persons  (having  sufficient  land  in 
the  county  to  answer  the  King  and  his  people)  is  submitted  by  the 
senior  judge  who  went  on  circuit  to  each  county  the  preceding  summer. 
From  this  list  three  are  selected  after  consideration  of  excuses.  The 
roll  is  subsequently  revised  and  submitted  to  the  King,  who  selects  by 
piercing  the  roll  opposite  the  name  of  the  person  chosen.  The  list  when 
"  pricked  "  is  gazetted  and  a  warrant  is  transmitted  to  the  sheriff-elect, 
and  a  copy  to  the  clerk  of  the  peace  (see  Churchill,  Sheriff,  2nd  ed.,  13 ; 
Mather,  Sheriff  Law,  1). 

On  making  a  declaration  of  office,  the  sheriff  is  entitled  to  act  for 
one  year,  and  until  his  successor  makes  the  like  declaration;  but  he 
may  be  dismissed  at  pleasure.  Demise  of  the  Crown  does  not  affect 
him  (50  &  51  Vict.  c.  55,  ss.  3,  6,  7).  He  may  not  be  chosen  twice 
in  three  years  if  there  is  any  other  person  in  the  county  qualified 
(s.  5). 

Borough  Sheriffs. — The  counties  of  cities  or  towns  which  have  sheriffs 
of  their  own  are  Berwick,  Bristol,  Canterbury,  Carmarthen,  Chester, 
Exeter,  Gloucester,  Haverfordwest  (34  &  35  Hen.  viii.  c.  26,  s.  61), 
Kingston-on-Hull,  Lichfield,  Lincoln,  London  City,  Newcastle-upon-Tyne, 
Norwich,  Nottingham,  Oxford  (which  has  a  sheriff,  though  apparently 
not  a  county  in  itself),  Poole,  Southampton,  Worcester,  and  York. 

Except  in  London  City  (see  Vol.  VIII.  p.  403),  the  sheriffs  are  elected 
annually  on  9th  November  and  by  the  town  council,  and  hold  office  till 
their  successors  are  appointed  and  accept.  They  are  re-eligible  (45  & 
46  Vict.  c.  50,  s.  170 ;  50  &  51  Vict.  c.  55,  s.  36). 

Parliamentary  Elections. — The  sheriff  is  returning  officer  for  county 
elections,  for  which  he  holds  the  County  Court.  The  origin  of  the  term 
"  returning  officer  "  arises  from  his  duty  to  execute  and  return  election 
writs,  free  of  charge  (7  &  8  Will.  ill.  c.  25,  s.  2).     He  has  also  duties  as 


SHERIFF  377 

to  publishing  election  petitions  (31  &  32  Vict.  c.  125,  s.  7),  and  as  to 
attending  the  judges  on  their  trial  (31  &  32  Vict.  c.  125,  s.  30 ;  42  &  43 
Vict.  c.  75,  s.  2). 

Judicial  Functions — {a)  Criminal  Justice. — He  is  precluded  from 
holding,  i.e.  trying  pleas  of  the  Crown  (Mag.  Chart,  c.  24 ;  50  &  51  Vict, 
c.  55,  8.  18  (1)).  Coroners  keep  and  record,  but  do  not  hold  such  pleas 
(see  Coroner).  The  sheriff'  may  not  act  as  a  justice  of  the  peace  during 
his  year  of  office  (50  &  51  Vict.  c.  55,  s.  17 ;  see  1  Stubbs,  Const.  Hist., 
680).  This  disquaHfication  dates  from  1553  (1  Mary,  sess.  2,  c.  8),  but 
does  not  affect  his  powers  as  conservator  of  the  peace  in  suppressing 
riots,  etc. 

(b)  County  Court. — The  sheriff"  as  a  judicial  officer  presided  over  the 
common  law  County  Court  or  Court  baron  of  his  county  (as  to  which 
see  1  Pollock  and  Maitland,  Hist.  Eng.  Law,  521-543).  His  jurisdiction 
to  hold  pleas  of  the  Crown,  or  take  under  any  commission  or  writ 
whereby  any  person  is  indicted,  was  abolished  in  1335  (28  Edw.  ill.  c.  9 ; 
see  now  50  k  51  Vict.  c.  55,  s.  18  (3)),  and  the  criminal  pleas  known  as 
against  the  sheriff's  peace  have  long  been  merged  in  pleas  of  the  Crown. 
The  military  and  fiscal  powers  of  the  Court  have  been  long  in  desuetude 
(2  Stubbs,  Hist.  Con^t.  Eng.,  228-235).  The  civil  jurisdiction  of  the  Court 
continued  until  the  establishment,  in  1846,  of  the  statutory  County 
Court,  and  is  still  preserved  by  50  &  51  Vict.  c.  55,  8.  18,  for  the 
following  purposes: — 

(a)  For  holding  parliamentary  or  other  elective  elections. 

{h)  For  execution  of  a  writ,  e.g.  writs  leading  up  to  Outlawry  and  writs 
of  inquiry  as  to  damages  issued  from  the  High  Court,  see  Inquiry,  Writ  of; 
Outlawry. 

(c)  Other  specific  purposes  required  by  law. 

{d)  To  assess  compensation  under  the  Lands  Clauses  Acts,  and  similar 
enactments.  (See  the  rules  of  August  2,  1900  (St.  R.  &  0.,  1900,  No.  632), 
as  to  the  person  holding  Courts  for  such  assessment.) 

As  to  sheriff  Courts  in  boroughs,  see  Inferior  Courts  and  London 
City.  The  existence  of  these  Courts  does  not  affect  the  duties  of  a 
borough  sheriff  as  to  the  matters  last  above  dealt  with  (50  &  51  Vict, 
c.  55,  s.  36). 

(c)  Sheriff's  Tourn. — This  was  the  circuit  of  the  sheriff  twice  a  year, 
as  a  judicial  officer,  through  the  hundreds  or  other  subdivisions  of  his 
county  which  were  in  the  King's  hands — (1)  To  hold  a  view  of  frank- 
pledge therein ;  (2)  to  receive  presentment  of  grave  offences  for  trial  by 
justices  in  eyre ;  (3)  to  receive  charges  for  petty  offences  and  amerce 
the  offenders.  It  corresponded  to  the  Courts  leet  held  by  lords  in  their 
franchises.  It  had  long  fallen  into  disuse,  and  was  abolished  in  1887 
(50  &  51  Vict.  c.  55,  s.  18  (4);  see  1  Pollock  and  Maitland,  Hist.  Eng. 
Law,  546;  2  ibid.,  518).  The  abolition  does  not  affect  the  right  to  hold 
Courts  baron.  Courts  leet,  view  of  frankpledge  or  any  like  Court  held 
in  1887  (50  &  51  Vict.  c.  55,  s.  40). 

Executive  Functions. — Besides  his  now  truncated  judicial  functions 
the  sheriff  was  the  ministerial  officer  of  the  King's  Courts  for  the  execu- 
tion of  all  process,  original,  mesne,  or  final,  issuing  from  these  Courts 
and  the  High  Court  of  Parliament  in  matters  civil  and  criminal  in  so 
much  of  his  county  as  did  not  lie  within  a  liberty  or  franchise  of  the 
county  or  within  a  borough  within  it  which  was  a  county  in  itself 
(2  Pollock  and  Maitland,  Hist.  Eng.  Law,  589). 


378  SHEKIFF 

Criminal  Proceedings. — The  sheriff  is  still  in  theory  the  chief  execu- 
tive officer  for  the  execution  of  criminal  process.  In  practice  he  is  a 
mere  nominis  umhra  of  the  ancient  common-law  officer.  He  is  the 
person  to  call  out  the  Posse  Comitatus  (50  &  51  Vict.  c.  55,  s.  8);  but 
this  power,  while  not  extinct,  is  not  used  owing  to  the  establishment 
of  the  Police,  and  because  of  the  powers  of  the  Lord-Lieutenant  over 
the  territorial  forces.  His  functions  as  a  custodian  of  prisoners  have 
ceased  as  to  all  persons  in  Pkison,  except  prisoners  sentenced  to  death 
(see  50  &  51  Vict.  c.  55,  s.  16  (2)).  He  has  no  longer  any  control  over 
gaolers  nor  any  liability  for  escape  of  prisoners  from  prison ;  but  he 
has  still  to  carry  out,  by  deputy  or  otherwise,  any  sentence  of  death  (see 
Capital  Punishment).  Except  as  to  this,  his  share  in  criminal  justice  is 
now  limited  to  attending  the  judges  of  assize,  etc.,  and  to  providing  proper 
equipage  and  escort  of  javelin  men  or  police  (3  Edw.  ii.  c.  3 ;  50  &  51 
Vict.  c.  55,  s.  9 ;  and  see  Circuits),  and  to  paying  Eewards  ordered  by 
the  Court  to  persons  active  in  apprehending  criminals.  If  he  fails  to 
attend  assizes,  or  to  lodge  and  care  properly  for  the  judges,  or  to  show 
them  due  respect  in  and  out  of  Court,  he  is  fineable  for  his  contempt ; 
and  this  power  has  been  exercised  even  in  modern  times  (see  50  &  51 
Vict.  c.  55,  s.  29 ;  Ex  parte  Fernandez,  1861,  10  C.  B.  K  S.  3, 52 ;  Oswald 
on  Contempts,  2nd  edit.  50,  51). 

Juries. — He  is  the  proper  officer  to  summon  jurors  for  the  superior 
Courts.  If  he  is  disqualified  by  interest,  the  Coroner,  or,  failing  him, 
"  elisors,"  discharge  this  duty  (see  Jury).  He  must  not  put  his  own 
officers  on  a  jury  (50  &  51  Vict.  c.  55,  s.  12). 

Execution  of  Process. — The  sheriff  is  the  proper  officer  to  execute 
all  writs  and  process  issued  out  of  the  Superior  Courts,  whether  at  the 
suit  of  the  Crown  or  the  party  (50  &  51  Vict.  c.  55,  ss.  10,  11),  as  to  the 
procedure  with  respect  to  levy  and  sale  in  the  case  of  executive  or  civil 
process,  see  Execution,  Vol.  V.  p.  477. 

Every  writ  of  inquiry,  arrest,  or  execution  contains  a  direction  to 
return  the  writ,  with  a  statement  of  what  the  sheriff  has  done  to  obey 
it,  and  the  result.  The  ancient  forms  of  these  writs  are  collected  in 
Retorna  Brevium.  The  forms  of  return  most  familiarly  known  are : 
cepi  corpus  or  non  est  inventus  in  meo  vicecomitatu,  or  elongatus  est,  to 
writs  of  Capias  ;  nulla  bona  to  writs  of  Fieri  Facias  ;  paratum  haheo 
to  writs  of  Habeas  Corpus,  etc.  If  a  bad  return  is  made,  or  the  return 
is  not  made  with  reasonable  dispatch,  or  in  accordance  with  the  rules  of 
procedure  or  statute  affecting  the  particular  writ,  the  sheriff  may  be 
attached  (see  Harvey  v.  Harvey,  1884,  26  Ch.  D.  674). 

The  accuracy  of  the  return  is  challenged  by  action  for  false  return 
where  damage  to  a  creditor  results  ( Wylie  v.  Birch,  1843,  L.  R.  4  Q.  B. 
566 ;  Bechford  v.  Sheriff  of  Wilts,  1796,  2  Esp.  475  ;  Howden  v.  Standish, 
1849,  6  C.  B.  504 ;  77  K.  R.  379). 

The  obligation  to  make  a  return  ceases  six  months  after  he  ceases  to 
hold  office  (50  &  51  Vict.  c.  55,  s.  28  (3)). 

Where  a  liberty  or  franchise  exists  in  the  county  into  which  he 
cannot  execute  process  he  returns  mandavi  ballivo  and  the  result  of  the 
bailiff's  action.  The  duties  of  lords  and  bailiffs  of  any  surviving  liberty 
as  to  executing  writs  are  regulated  by  50  &  51  Vict.  c.  55,  ss.  34,  35. 

In  the  execution  of  process  where  the  Crown  is  a  party  the  sheriff 
is  entitled  and  bound,  if  resisted,  to  break  open  outer  doors  {Semaynes 
Case,  1603,  5  Co.  Rep.  91;  77  E.  R.  194;  Harvey  v.  Harvey,  1884, 
26  Ch.  D.  644,  at  648).      This  extends  to  criminal  matters  in  the 


SHERIFF  379 

ordinary  sense,  to  writs  of  attachment  for  contempt  (Harvey  v.  Hai^ey, 
ubi  supra),  to  writs  of  extent  (West,  73),  and  capias  utlagatum  (E.  v. 
Bird,  1796,  2  Show.  87);  now  confined  to  criminal  cases  (42  &  43  Vict, 
c.  59,  s.  3)  and  writs  of  sequestration  (Lowten  v.  Colchester  {Mayor  of), 
2  Mer.  395 ;  35  E.  R.  991 ;  16  R.  R.  187).  In  the  execution  of  civil 
process  he  may  not  break  the  outer  door  of  a  dwelling-house  (Burdett 
V.  Abbot,  1811,  14  East,  1,  154;  12  R.  R.  450;  Harvey  v.  Harvey,  ubi 
supra),  but  may  do  so  as  to  outbuildings,  etc.  {Hodderv.  Williams,  [1895] 
2  Q.  B.  663).  The  rule  seems  to  differ  from  that  in  case  of  distress 
for  rent  {LoTig  v.  Clarke,  [1894]  1  Q.  B.  119).  This  rule  does  not  apply 
to  a  writ  of  habere  facias  possessionem,  which  deals  with  the  realty,  and 
contains  a  non  omittas  clause  {Semayne's  Case,  1603,  5  Co.  Rep.  916; 
77  E.  R.  194). 

If  violence  or  resistance  is  offered  or  apprehended  the  sheriff  can, 
and  it  is  said  should,  summon  and  take  with  him  the  posse  comitatiis, 
and  where  resistance  is  long  and  severe,  e.g.  in  Ireland,  a  further  writ, 
the  writ  of  rebellion,  has  on  occasion  been  used  (see  Posse  Comitatus). 

Deputies. — A  sheriff  may  not  let  his  county  to  ferm  (50  &  51  Vict, 
c.  55,  s.  19),  but  must  appoint  an  under-sheriff  to  act  as  his  deputy, 
which  he  invariably  does,  letting  the  deputy  take  all  fees,  on  a 
bond  of  indemnity.  The  under-sheriff  must  appoint  a  deputy,  having 
an  office  in  London,  within  one  mile  of  the  Inner  Temple  Hall,  and  if 
the  sheriff  dies,  himself  acts  until  a  new  sheriff  comes  into  office.  But 
the  sheriff  is  civilly  liable  for  any  wrongful  act  by  his  deputies  in 
executing  writs  (Gregory  v.  Cotterdl,  1856,  5  El.  &  Bl.  571),  and  for 
allowing  the  escape  of  any  person  arrested  by  them  before  being  handed 
over  to  the  gaoler  of  a  prison  (50  &  51  Vict.  c.  55,  ss.  15,  16,  29). 

Bailiffs  and  other  subordinate  officers  are  appointed  by  the  sheriff 
to  execute  writs,  etc.,  who  must  take  a  declaration  of  office  before 
acting,  must  not  buy  their  offices,  and  are  subject  to  penalties  for 
misconduct  (50  &  51  Vict.  c.  55,  ss.  14-16,  28  ;  MoXhQv,  Sheriff  Law,  12). 

Misconduct  by  a  sheriff,  under-sheriff,  or  other  officer  of  the  sheriff, 
is  a  misdemeanor  in  the  cases  enumerated  in  50  &  51  Vict.  c.  55, 
s.  28,  by  the  person  actually  guilty  of  the  misconduct  (Lee  v.  Dangar, 
[1892]  2  Q.  B.  337 ;  Shoppee  v.  Nathan,  [1892]  1  Q.  B.  425  ;  Bagge  v. 
Whitehead,  [1892]  2  Q.  B.  355).  This  penalty  is  in  addition  to  the 
power  of  punishment  by  attachment  or  fine  for  misconduct,  possessed 
by  the  Supreme  Court  (50  &  51  Vict.  c.  55,  s.  29  (6)). 

Fees. — As  to  poundage,  see  Poundage. 

By  the  table  of  fees  set  forth  in  the  schedule  to  the  Order  of  31st 
August  1888,  made  pursuant  to  the  Sheriffs  Act,  1887,  St.  R.  &  O., 
Revised  (1904  ed.),  vol.  xi.,  tit.  "Sheriff"  E,  it  is  provided  that  for  a  man 
in  possession  under  a  writ  of  fi.  fa.  a  sum  of  five  shillings  per  day  is 
leviable,  the  man  in  every  case  providing  his  own  board.  The  "  costs 
of  the  execution,"  which  are  declared  by  sec.  11  of  the  Bankruptcy  Act, 
1890,  to  be  a  charge  on  the  goods  or  money  delivered  by  the  sheriff 
to  the  official  receiver,  include  possession  money,  but  as  against  the 
debtor  the  costs  of  retaining  possession  for  a  reasonable  time  only  are 
chargeable,  unless,  indeed,  possession  has  been  retained  at  the  request 
of  the  debtor,  in  which  case  possession  money  for  the  full  period  is 
payable  (In  re  Finch,  1891,  65  L.  T.  466 ;  In  re  Hurley,  1893,  41  W.  R. 
653). 

Finance. — The  sheriff  was  at  one  time  receiver  of  all  profits  owing  to 
the  Crown  in  the  shire,  and  had  to  account  annually  to  the  Exchequer 


380  SHIFTING  USE 

for  these  profits,  whether  arising  out  of  the  "ferm"  of  the  shire  or 
feudal  income  or  the  proceeds  of  pleas  of  the  Crown  (1  Stubbs,  Const. 
Hist,  430),  after  deducting  all  lawful  disbursements.  His  functions 
as  to  all  these  matters  have  now  been  transferred  to  other  officers, 
except  as  to  accounting  for  all  sums  received  by  him  under  process 
intrusted  to  him  for  execution  on  behalf  of  the  Crown  (see  Estkeat  ; 
Fine  ;  Forfeiture).  Within  two  months  of  the  expiration  of  a  sheriffs 
year  of  office  an  account  must  be  sent  to  the  Treasury  by  the  under- 
sheriff  of  the  receipts  on  behalf  of  the  Crown,  which  is  submitted  to 
audit  (50  &  51  Vict.  c.  55,  ss.  21,  22).  The  sheriff  also  submits  an 
account  ol  his  "cravings,"  i.e.  of  disbursements  which  he  desires  to 
recover  from  the  Treasury  (see  Eewards). 

Shifting'  Use. — See  Uses;  Executory  Interests. 

Ship-money. — The  Act  of  the  Long  Parliament  (17  Car.  i. 
c.  11),  declaring  the  illegality  of  ship-money  and  annulling  the  judg- 
ment in  B.  V.  Hamijden,  1637,  3  St.  Tri.  825,  is  a  great  constitutional 
landmark,  because  it  deprived  the  Crown  of  the  last  means  of  imposing 
direct  taxation  without  the  authority  of  Parliament.  The  majority 
of  the  judges  had  held  that  it  belonged  to  the  prerogative  of  the 
Crown  for  the  defence  of  the  realm  to  call  upon  the  port-towns,  and 
in  cases  of  national  danger,  upon  the  inland  counties  also,  to  furnish 
ships  for  the  national  defence,  and  that  it  could  enforce  payment  of 
the  assessments  directed  for  that  purpose  in  the  Court  of  Exchequer. 
According  to  Mr.  Gardiner,  it  had  been  the  constitutional  practice  of  the 
Plantagenets  to  requisition  ships  manned  and  equipped  for  the  defence 
of  the  realm ;  and  in  isolated  cases  the  demand  had  been  made  on  inland 
counties  also.  In  1619  James  i.  levied  £40,000  ship-money  upon 
London,  and  £8550  upon  the  other  port-towns  (Gardiner,  iii.  288) ;  and 
Charles  I,  followed  his  example  in  1625  {ibid.,  VI.  226).  Serious 
opposition  was  only  provoked  when  the  exaction  came  to  be  regarded 
as  one  of  the  expedients  adopted  by  Charles  to  enable  him  to  govern 
without  Parliament.  The  writs  of  1634  were  confined  to  the  port- 
towns,  but  the  judges,  when  consulted  extra-judicially,  advised  that, 
in  the  case  of  national  danger,  of  which  the  King  was  sole  judge,  the 
demand  might  be  extended  to  the  whole  kingdom.  This  was  done  in 
the  writs  of  1635  and  1636,  which  gave  rise  to  Hampden's  resistance. 
Without  attempting  an  examination  of  the  arguments  urged  on  either 
side,  it  may  be  suggested  that  when  viewed  in  the  light  of  the  prece- 
dents, the  ideas  of  the  time,  and  the  stage  of  development  which  the 
Constitution  had  then  reached,  the  judgments  of  the  majority  of  the 
judges  are  far  from  meriting  the  unmeasured  condemnation  so  often 
passed  on  them. 

Shipping  Inquiries  and  Courts.— (a)  Shipping  In- 
quiries.— liie  Merchant  Shipping  Acts  make  provision  for  holding 
inquiry  and  investigation  into  shipping  casualties  on  or  near  the  coasts 
of  the  United  Kingdom  happening  to  any  ship,  or  happening  anywhere 
to  a  British  ship  if  evidence  thereof  is  obtainable  in  the  United  King- 
dom. A  preliminary  inquiry  may  be  held  by  the  coastguard  inspecting 
officer  or  chief  customs  officer  at  the  place  where  the  casualty  occurs, 
or  where  the  witnesses  with  respect  to  the  casualty  arrive  or  are  found 
or  can  be  conveniently  examined,  or  by  any  person  appointed  by  the 


SHIPPING  INQUIEIES  AND  COURTS  381 

Board  of  Trade.  If  such  person  thinks  that  a  formal  investigation 
should  be  held,  or  if  the  Board  of  Trade  so  directs,  a  Court  of  summary 
jurisdiction  or  a  wreck  commissioner  appointed  under  the  Act  may- 
hold  it,  and  the  Court  is  assisted  by  assessors  of  nautical,  engineering, 
or  other  special  skill  or  knowledge  chosen  from  a  list  approved  for  that 
purpose  by  a  Secretary  of  State ;  where  such  inquiry  may  involve  the 
cancelling  or  suspension  of  the  certificate  of  a  master,  mate,  or  engineer, 
two  assessors  with  experience  in  the  merchant  service  assist  the  Court ; 
and  the  Court  after  hearing  the  case  reports  to  the  Board,  and  may  make 
order  as  to  the  costs  of  the  inquiry,  and  the  Board  may  pay  the  costs  of  a 
formal  investigation  (s.  466  (9)).  The  Board  should  state  at  the  inquiry 
after  the  evidence  has  been  given  whether  in  its  opinion  the  certificate 
shall  be  suspended  or  not,  and  if  the  Court  does  not  suspend  the  certificate 
it  may  make  the  Board  liable  to  costs  {The  Carlisle,  [1906]  P.  301 ;  see 
Costs  (Admiralty)).  Where  any  loss  of  life  from  a  fishing  vessel's 
boat  takes  place,  the  Board  may  order  an  inquiry,  which  is  held  in  the 
way  above  described.  The  Board  has  power  to  cancel  or  suspend  the 
certificate  of  any  master,  mate,  or  engineer,  if  convicted  of  any  offence ; 
and  a  Court  holding  an  investigation  into  a  shipping  casualty  has  the 
same  power  if  loss  or  abandonment  or  damage  of  ship  or  loss  of  life 
has  been  caused  by  any  person's  default — which  does  not  include  error 
of  judgment  in  moment  of  peril,  difficulty,  and  danger  {The  Famenoth, 
1882,  7  P.  D.  207),  but  does  include  a  surrender  of  judgment  to 
unreasonable  panic  {Brown  v.  Board  of  Trade,  1890,  18  Sess.  Ca.  (4th) 
2'dl)—e.g.  taking  improper  ballast  {The  Golden  Sea,  1882,  7  P.  D.  194), 
if  one  assessor  concurs ;  and  the  same  power  is  possessed  by  any  Court 
holding  an  inquiry  into  the  conduct  of  such  an  officer,  if  it  finds  him 
incompetent  or  guilty  of  misconduct,  drunkenness,  or  tyranny,  or  failure 
to  render  assistance  after  collision,  and  by  a  naval  Court  superseding 
or  removing  the  holder  of  the  certificate  (see  below).  The  Court,  where 
a  question  is  involved  as  to  cancelling  or  suspending  a  certificate,  must 
state  its  decision  in  open  Court,  and  report  it  to  the  Board.  The  Board 
may  also  cause  an  inquiry  to  be  held  into  the  conduct  of  a  certificated 
officer,  to  be  heard  either  before  a  person  appointed  by  them  or  by  a 
convenient  local  marine  board  with  a  legal  assistant.  The  master  of 
any  ship  in  the  jurisdiction  of  the  Admiralty  may  be  removed  by  the 
High  Court,  and  in  British  dominions,  other  than  Scotland  or  Ireland 
where  the  Court  of  Session  and  the  High  Court  respectively  have  the 
power,  by  a  colonial  Court  of  Admiralty  or  a  Vice-Admiralty  Court,  if 
such  removal  is  shown  to  be  necessary,  on  the  application  of  a  ship- 
owner or  his  agent,  consignee,  certificated  mate,  or  a  third  of  the  crew, 
and  the  Court  may  appoint  a  new  master,  with  the  consent  of  the 
owner,  agent,  or  consignee.  A  certificated  officer  thus  deprived  of  his 
certificate  must  deliver  it  up  to  the  Court  or  Board  suspending  him  ;. 
and  the  Board  has  power  to  restore  the  certificate.  An  inquiry  or 
investigation  into  a  shipping  casualty  or  into  the  conduct  of  a  certifi- 
cated officer  may  be  reheard  by  order  of  the  Board,  either  by  the  same 
Court  or  the  High  Court  (in  England,  and  elsewhere,  as  above) ;  and  if 
in  such  inquiry  a  certificate  has  been  cancelled  or  suspended,  and  no- 
rehearing  is  asked  for,  an  appeal  lies  to  the  High  Court  (in  England,  and 
elsewhere,  as  above),  but  in  no  other  case.  If  on  any  such  investigation 
or  inquiry  the  Court  finds  that  a  shipping  casualty  has  been  caused,  or 
contributed  to,  by  any  person's  wrongful  act  or  default  and  an  applica- 
tion for  rehearing  has  not  been  made  or  has  been  refused,  the  shipowner 


382  SHIPPING  INQUIEIES  AND  COUETS 

or  any  other  person  interested  may  appeal  on  the  same  conditions  as  a 
master  against  the  suspension  or  cancellation  of  his  certificate  (M.  S.  A., 
1906,  s.  66).  "Where  in  any  place  a  stipendiary  magistrate  is  a  member 
of  a  local  marine  board,  any  shipping  inquiry  held  there  when  he  is 
present  must  be  held  before  him ;  and  colonial  Courts  have  authority 
to  make  inquiries  into  shipping  casualties  and  the  conduct  of  officers, 
with  the  same  powers  and  in  similar  cases  to  those  described  above 
with  regard  to  inquiries  in  the  United  Kingdom  with  a  similar  power 
of  rehearing,  and  an  appeal  to  the  High  Court  (ss.  464-479). 

(b)  Naval  Courts.— Whenever  a  complaint  requiring  investigation 
is  made  by  the  master,  certificated  mate,  or  seaman  of  any  British 
ship,  to  an  officer  in  command  of  a  King's  ship  on  a  foreign  station, 
or  failing  him,  to  a  consul,  or  the  interest  of  the  owner  of  a  British 
ship  or  her  cargo  requires  it,  or  a  British  ship  is  wrecked,  abandoned, 
or  otherwise  lost  close  by,  or  the  crew  or  part  of  the  crew  of  a  British 
ship,  wrecked,  abandoned,  or  lost,  arrives  at  that  place,  such  officer 
may  summon  a  naval  Court,  which  consists  of  not  more  than  five  or  less 
than  three  specified  officers,  if  possible  one  to  be  a  naval  officer  not  below 
the  rank  of  lieutenant,  one  a  consular  officer,  and  one  a  master  of  a  British 
merchant  ship,  and  the  rest  naval  officers,  masters  of  British  merchant 
ships  or  British  merchants ;  and  the  Court  investigates  the  complaint  or 
the  cause  of  the  wreck,  or  loss,  and  may  administer  oaths,  summon  and 
compel  the  attendance  of  parties  and  witnesses,  and  the  production 
of  documents.  Such  a  Court  has  power  to  remove  the  master  of  a 
ship,  with  the  consent  of  her  consignee,  if  present,  if  the  safety  of  the 
ship  or  crew  or  the  interest  of  the  owner  requires  it;  to  cancel  or 
suspend  certificates  in  cases  authorised  by  the  Act;  to  discharge  a 
seaman  from  his  ship,  and  order  the  forfeiture  of  his  wages,  and  com- 
pensate his  owner  therewith  or  pay  it  into  the  Exchequer ;  to  decide  any 
question  as  to  wages,  fines,  or  forfeitures  between  parties  to  the  pro- 
ceedings, and  a  seaman  after  being  found  guilty  by  a  naval  Court  of  an 
offence  under  sec.  225  of  the  Act  of  1894  and  discharged  by  the  Court 
cannot  recover  any  wages  from  the  shipowner  in  respect  of  his  employ- 
ment in  his  ship  {Hutton  v.  Ras  SX  Co.,  1905,  11  C.  C.  66;  94  L.  T. 
645) ;  to  order  the  costs  of  imprisoning  a  seaman  or  apprentice  in  a  foreign 
port,  or  maintaining  him  there  in  prison,  to  be  deducted  from  his  earned  or 
future  wages ;  to  have  a  survey  of  the  ship  made ;  and  to  exercise  other 
powers  of  punishment,  including  sending  a  person  sentenced  to  imprison- 
ment home  to  undergo  his  sentence  (M.  S.  A.,  1906,  s.  67).  An  appeal  lies 
for  any  person  aggrieved  by  an  order  of  such  a  Court  as  to  forfeiture  of 
wages  or  order  as  to  wages,  fines,  or  forfeitures  to  the  High  Court  (M.  S.  A., 
1906,  8.  67),  and  an  order  of  such  a  Court,  except  where  varied  on  appeal, 
is  conclusive  in  subsequent  legal  proceedings  as  to  the  rights  of  the 
parties  (ibid.,  s.  68 ;  and  1894,  s.  483).  The  Court  must  report  its  pro- 
ceedings and  orders  to  the  Board  of  Trade.  A  penalty  is  imposed  for 
preventing  complaint  being  made  to  an  officer  empowered  to  summon 
a  naval  Court  or  obstructing  the  holding  of  any  investigation  by  such 
a  Court.  These  provisions  apply  to  all  sea-going  ships  registered  in 
the  United  Kingdom,  except,  elsewhere  than  in  Scotland,  fishing  boats 
exclusively  fishing  on  its  coasts,  and  also  to  ships  registered  in  British 
possessions  when  out  of  the  jurisdiction  of  their  Governments  (1894, 
ss.  480-486). 

(c)  Courts  of  Survey. — See  Survey,  Courts  of. 


SHIP;  SHIPOWNERS  383 

Ship;  Shipowners,  including  Owners;  Ship's  Husband; 
Mortgages  ;  Shipmaster  and  Mate  ;  Ship's  Papers. 

Ship  ;  Shipowner. — Who  can  be  owners  and  how  to  become  an  owner 
of  a  British  ship  has  already  been  discussed  under  British  Ship,  where 
the  statutory  rules  governing  the  subject  are  stated ;  and  the  relation  of 
shipowners  to  seamen  are  dealt  with  under  Crew,  Seaman,  and  Wages 
(Ship).     Here  only  the  rights  of  shipowners  inter  se  are  dealt  with. 

The  majority  of  the  owners  of  a  British  ship  can  control  and  direct 
its  movements ;  but  if  the  majority  wish  to  send  her  on  a  voyage  to 
which  the  minority  object,  the  latter  may  arrest  and  detain  her  in  an 
action  of  restraint,  until  the  majority  have  given  security  by  bond  for 
the  safe  return  of  the  ship  (The  Apollo,  1824,  1  Hag.  Adm.  306;  The 
Talca,  1880,  5  P.  D.  169);  but  this  cannot  be  done  in  the  case  of  a 
foreign  ship  unless,  perhaps,  the  law  of  her  country  gives  such  power 
(The  Bernstoff,  1854,  2  Sp.  30).  A  mortgagee  not  in  possession  of  the 
ship  cannot,  under  ordinary  circumstances,  maintain  such  an  action  (The 
Highlander,  1843,  2  Rob.  W.  109 ;  The  InnisfcUlen,  1866,  L.  R.  1  Ad.  &  Ec. 
75),  and  can,  perhaps,  only  do  so  if  the  voyage  is  exceptional  and  likely  to 
injure  his  interest  (see  post,  Ship's  Husband).  The  security  to  which  the 
minority  is  entitled  is  a  stipulation  by  the  majority  and  sureties  to  pay 
the  value  of  the  former's  shares  in  the  ship  if  she  does  not  return  (The 
Rohert  Dickenson,  1884, 10  P.  D.  15 ;  The  Cawdor,  No.  1,  1898,  8  Asp. 
475 ;  The  Cawdor,  No.  2,  1899,  81  L.  T.  392).  See  Bail  (Admiralty). 
The  minority  in  such  a  case  is  not  obliged  to  bear  any  part  of  the 
expenses  of  the  outfit,  nor  entitled  to  share  in  the  profits  of  the  voyage, 
but  the  ship  sails  entirely  at  the  majority's  risk  and  benefit ;  and  the 
minority  is  not  recompensed  for  the  ordinary  wear  and  tear  of  the  ship 
during  such  voyage.  If  the  ship  is  lost,  the  majority  is  liable  for  the 
value  of  the  minority's  shares  in  her  (The  Margaret,  1829,  2  Hag.  Adm. 
275 ;  The  Regalia,  1884,  5  Asp.  338 ;  Williams  and  Bruce,  33).  The 
power  of  directing  and  controlling  the  ship,  however,  only  belongs  to  the 
majority ;  and  where  the  ship  is  owned  in  equal  moieties  the  Court  will 
not  alter  the  possession  (see  Possession  of  Ship). 

By  the  Admiralty  Court  Act,  1861,  the  Court  was  given  power,  in 
suits  between  co-owners  touching  the  ownership,  possession,  enjoyment 
and  earnings  of  any  ship  registered  in  England  or  Wales,  to  direct  the 
ship  or  any  share  in  her  to  be  sold  (24  Vict.  c.  10,  s.  8) ;  and  in  any 
co-ownership  action  the  defendant  may  be  restrained  from  creating  any 
charge  or  otherwise  dealing  with  any  share  of  the  vessel  relating  to 
which  the  action  is  brought  (The  Horlock,  1877,  2  P.  D.  250).  The 
Court  may  order  a  sale  on  the  application  of  the  minority,  even  where 
it  is  opposed  by  the  majority  (The  Nelly  Schneider,  1878,  3  P.  D.  152); 
but  it  is  reluctant  to  do  so  on  the  application  of  the  minority,  and  will 
only  do  so  in  such  a  case  where  it  is  of  opinion  that  it  is  to  the  obvious 
advantage  of  all  the  owners  (The  Nelly  Schneider,  a.hove ;  The  Marion, 
1884,  10  P.  D.  4 ;  The  Heretvard,  [1895]  P.  284). 

The  same  Act  also  gives  power  to  the  Court  to  decide  all  questions 
arising  between  co-owners  or  any  of  them  touching  the  matters  referred 
to  above,  and  to  settle  all  accounts  outstanding  and  unsettled  between 
the  parties  in  relation  thereto,  and  make  such  other  order  as  it  thinks  fit 
(s.  8).  Under  this  the  Court  may  appoint  a  receiver  in  a  co-ownership 
suit  (The  Ampthill,  1880,  5  P.  D.  224);  it  may  order  a  plaintiff  who  has 
ceased  to  be  part  owner  before  the  suit  began  to  give  security  to  the 
amount  of  his  former  interest  (The  Lady  of  the  Lake,  1870,  L.  R.  3  Ad. 


384  SHIP;  SHIPOWNERS 

&  Ec.  29) ;  and  it  has  entertained  an  independent  suit  for  an  account 
when  there  was  a  dispute  as  to  earnings  of  a  ship,  though  ship  had  been 
lost  before  action  began  {The  Idas,  1863,  B.  &  L.  65 :  The  Albion,  1862, 
6  L.  T.  164;  The  Ceylon,  1868,  18  L.  T.  417).  In  case  of  a  dispute  as 
to  a  ship's  earnings,  where  the  cargo  had  been  put  in  charge  of  a  dock 
company,  and  the  defendant  (part  owner)  had  given  the  company  notice 
to  hold  the  cargo  subject  to  freight,  the  Admiralty  Court,  on  the  appli- 
cation of  the  majority  of  part  owners,  granted  a  monition  against  the 
company  to  bring  in  the  freight  {The  Meggie,  1866,  L.  R.  1  Ad.  &  Ec.  77). 
The  Admiralty  Division,  like  the  Chancery  Division,  can  sell  a  British 
ship  the  property  in  which  is  vested  in  an  unqualified  person  (M.  S.  A., 
1894,  s.  28);  and  co-ownership  actions  can  only  properly  be  assigned  to 
it  (Williams  and  Bruce,  35,  36). 

Part  owners  of  ships  are  tenants  in  common,  and  cannot  pledge  each 
other's  credit  for  repairs  of  the  ship,  nor  have  they  a  lien  on  each  other's 
shares  for  contribution  to  expenses  incurred  for  the  joint  benefit.  But 
if  they  employ  the  ship  in  earning  freight,  the  earnings  of  the  ship  are 
treated  on  the  footing  of  a  partnership,  and  accordingly  the  expenses  of 
her  outfit,  including  repairs,  must  be  deducted  before  the  earnings  are 
divided  {Green  v.  Briggs,  1848,  17  L.  J.  Ch.  323 ;  Koldern^ss  v.  Shackels, 
1828,  8  B.  &  C.  612);  and,  under  a  contract  to  which  they  all  agree, 
each  becomes  personally  bound  in  full,  having  a  right  of  contribution  from 
the  others.  Before  a  joint  voyage  each  owner  must  contribute  to  the 
expenses  of  outfit,  and  a  purchaser  of  shares  during  the  voyage  and 
before  it  is  over  is  liable  for  his  proportion  {Helme  v.  Smith,  1830,  7  Bing. 
709;  33  R.  R.  633;  The  Meredith,  1885,  10  P.  D.  69;  The  Vindohala, 
1887,  13  P.  D.  42).  A  part  owner  may  bind  himself  not  to  bring  an 
action  of  restraint  {The  Ungland,  1886,  12  P.  D.  32);  but  it  is  doubtful 
if  a  majority  of  owners  can  deprive  themselves  by  agreement  of  the  right 
to  discharge  a  master  and  appoint  another  {Card  v.  Hope,  1824,  2  Barn. 
&  Cress.  661 ;  26  R.  R.  503). 

Ship's  Husband. — The  ship's  husband  is  a  person,  generally  one  of 
the  owners  (when  he  is  called  the  managing  owner),  who  manages  and 
controls  the  use  and  employment  of  the  ship.  Under  the  M.  S.  A.  the 
name  and  address  of  the  managing  owner  for  the  time  being  of  every 
ship  registered  in  the  United  Kingdom  must  be  registered  at  the  custom 
house  at  the  port  of  registry ;  where  there  is  not  a  managing  owner,  the 
ship's  husband  or  person  intrusted  with  the  management  of  the  ship  by 
its  owner  must  be  registered,  and  for  the  purposes  of  the  Act  he  has  the 
same  obligations  and  liabilities  as  if  he  were  managing  owner;  for 
default  in  this  respect  the  owner  of  the  ship  is  liable  to  a  fine  of  £100 
every  time  the  ship  leaves  a  port  in  the  United  Kingdom  (s.  59).  His 
duties  and  powers  are  generally  defined  by  agreement  between  himself 
and  his  employers  or  co-owners,  and  consist  in  seeing  that  the  ship  is 
properly  repaired,  equipped,  and  manned,  procuring  freights,  keeping  the 
ship's  papers,  making  necessary  entries,  adjusting  freights  and  averages, 
disbursing  and  receiving  moneys,  and  keeping  and  making  up  the 
accounts  between  all  parties  interested  (Abbott,  Shipping,  14th  ed.,  130), 
and  therefore  chartering  the  ship  {Darby  v.  Baines,  1851,  21  L.  J.  Ch. 
801).  liis  acts  for  these  purposes  are  considered  the  acts  of  all  the  part 
owners,  who  are  liable  on  all  contracts  entered  into  by  him  for  the 
employment  of  the  ship. 

A  managing  owner  is,  however,  only  an  owner  who  is  intrusted 
by  such  of  the  owners  as  are  interested  in  the  ship's  employment  to 


SHIP;  SHIPOWNEKS  385 

manage  her  affairs  (Bowen,  J.,  Frazer  v.  Cuthbertson,  1880,  6  Q.  B.  D.  93, 
99) ;  and  the  mere  fact  of  his  being  registered  as  such  does  not  give  him 
authority  to  bind  those  of  the  ship's  owners  whose  agent  he  is  not  in 
fact  (ibid.). 

The  minority  of  owners  can,  by  giving  him  notice,  revoke  his 
authority  to  act  as  their  agent ;  but  such  a  notice  will  not  exempt  them 
from  liability  under  an  agreement  which  the  managing  owner  has 
already  concluded  for  "  fixing  "  a  ship  for  a  voyage,  or  under  an  agree- 
ment supplementary  thereto  made  subsequently  to  receipt  of  such  notice 
(The  Vindobala,  1887, 13  P.  D.  42);  nor  can  the  minority,  after  allow- 
ing the  managing  owner  to  contract  for  a  new  voyage,  bring  an  action 
of  restraint  in  order  to  protect  themselves  against  the  consequences  of 
it  {ibid.) ;  and  part  owners  who  do  not  dissent  from  the  employment  of 
a  ship,  and  are  aware  that  other  part  owners  have  dissented,  share  in 
the  expenses  and  profits  of  such  voyage  {ibid. ;  and  see  Von  Freeden  v. 
Hull,  1907,  10  Asp.  247  and  394).  All  owners  are  bound  by  orders 
actually  given  to  which  they  have  agreed,  for  that  makes  them  irre- 
vocable {Chappell  v.  Bray,  1860,  6  H.  &  N.  145).  The  owner  of  a 
moiety  of  a  ship  who  is  also  managing  owner,  and  who  charters  the 
other  moiety,  can,  as  managing  owner,  pledge  his  co-owner's  credit  for 
repairs  {Preston  v.  Tamplin,  1857,  26  L.  J.  Ex.  346  and  348). 

The  powers  of  a  managing  owner  or  ship's  husband  include  borrowing 
money  for  the  necessary  purposes  of  the  ship  {Tlie  Faust,  1887,  6  Asp. 
126),  but  not  on  the  credit  of  the  shipowners  except  under  circum- 
stances of  necessity  {Pringle  v.  Dixon,  1896,  2  C.  C.  38),  nor  assigning 
the  entire  freight  for  an  advance  to  himself,  though  the  ship  is  in  his 
debt  {Beynon  v.  Godden,  1878,  3  Ex.  D.  263).  If  he  sells  the  shares  of  an 
owner  of  the  ship  without  his  consent,  he  is  liable  to  him  for  the  sum  for 
which  the  latter  had  stated  that  he  would  be  willing  to  sell  them  {Nicol  v. 
Hennessey,  1896, 12  T.  L.  R.  485).  He  may  make  a  charter-party  for  the 
ship,  but  having  done  so,  cannot  cancel  it,  though  this  would  be  for  the 
owner's  benefit  {Thomas  v.  Letvis,  1878, 4  Ex.  D.  18 ;  but  see  Abbott,  4th 
ed.,  136) ;  and  he  has  no  implied  authority  to  insure  unless  he  is  a  co-owner 
and  in  partnership  (see  Marine  Insurance).  He  may  receive  the  freight 
(see  Freight),  and  pay  liabilities  owing  to  himself  or  others  out  of  it 
(Abbott,  14th  ed.,  137) ;  and  if  he  represents  the  majority  he  may  use  it 
for  fitting  out  the  ship  for  a  new  voyage,  and  he  may  receive  contributions 
from  part  owners  to  losses  {The  Ida,  1886,  6  Asp.  21).  He  has  not 
authority  as  such  to  pledge  his  co-owner's  credit  for  the  expenses  of  a 
law-suit  {Campbell  v.  Stein,  1818,  6  Dow,  116,  135);  but  he  has  been 
held  to  have  authority  to  bind  them  for  the  amount  of  a  bail  bond  given 
to  release  the  ship  from  arrest  {Barker  v.  Highley,  1863,  15  C.  B.  N.  S. 
27).  He  may  sue  part  owners  for  their  share  in  the  outfit  of  the  ship 
{Helme  v.  Smith,  1830,  7  Bing.  709 ;  33  R.  R.  630),  or  in  her  liabilities ; 
but  if  he  has  not  discharged  the  liabilities,  and  the  part  owners  are  liable 
for  the  whole  amount  {e.g.  for  necessaries),  execution  may  be  stayed  in 
his  action  till  they  are  protected  against  other  claims  {The  G.  Jackson^ 
1885,  5  Asp.  399).  A  creditor  taking  payment  by  bill  from  the  managing 
owner  may  still  sue  the  other  owners  if  the  bill  is  dishonoured  {Robinson 
v.  Read,  1829,  9  B.  &  C.  449 ;  Keay  v.  Fenwick,  1876,  1  C.  P.  D.  745), 
although  they  have  settled  with  the  managing  owner  a  long  time 
before  {Davison  v.  Donaldson,  1882,  9  Q.  B.  D.  623).  He  may  bind  his 
co-owners  by  employing  a  shipbroker  as  an  agent  for  the  ship  for 
matters  within  the  scope  of  his  duty  {Coulthurst  v.  Sweet,  1866,  L.  R. 
VOL.  XIII.  25 


386  SHIP;  SHIPOWNERS 

1  C.  P.  649).  Similarly  a  shipbroker  may  be  instructed  by  the  master 
{Barnetson  v.  Peterson,  1902,  5  Sess.  Cas.  (5th)  86),  but  he  cannot  delegate 
his  authority  without  the  co-owner's  express  sanction  (Doeg  v.  Trist,  1897, 

2  C.  C.  153).  His  authority  extends  to  the  conduct  on  shore  of  all  that 
concerns  the  employment  of  the  ship ;  and  co-owners  who  depute  the 
management  of  the  ship  to  him  give  him  power  to  pledge  their  credit 
for  what  is  necessary  to  repair  and  equip  her  in  the  ordinary  course  of 
her  employment,  and  it  is  immaterial  that  he  has  instructions  to  insure, 
and  has  collected  money  from  underwriters  for  the  repair  of  damage 
done  to  the  ship  {The  Huntsman,  [1894]  P.  214).  It  is  his  duty 
to  account  to  his  co-owners  in  reasonable  time  for  the  ship's  earnings 
and  disbursements,  but  what  is  reasonable  time  depends  on  the  circum- 
stances of  each  case,  and  there  is  no  fixed  rule  that  a  ship's  accounts 
must  be  ready  before  she  sails  on  her  next  voyage  (The  Mount  Vernon, 
1891,  7  Asp.  32).  Where  the  ship  is  engaged  in  foreign  voyages,  in  the 
absence  of  evidence  that  each  voyage  is  a  separate  trading  transaction, 
the  relation  between  the  co-owners  and  the  managing  owner  is  treated 
as  a  continuous  partnership  in  respect  to  profit  and  loss  (The  Pongola, 
1895,  8  Asp.  89).  He  is  appointed  and  removed  by  the  consent  of  all 
the  owners  or  the  majority  of  them ;  a  formal  written  appointment 
is  not  necessary  if  he  has  acted  as  ship's  husband  (Chappell  v.  Bray, 
above) ;  and  it  is  doubtful  whether  it  can  be  stipulated  that  a  managing 
owner's  appointment  shall  be  irrevocable  (Card  v.  Hope,  1824,  2  B.  &  C. 
661 ;  26  R.  R.  503 ;  The  England,  1886,  12  P.  D.  32).  He  is  entitled 
to  remuneration  for  his  services,  but  there  is  no  fixed  rate  (The  Meredith, 
1885,  10  P.  D.  69);  but  if  he  is  a  shipbroker  he  cannot  in  the  absence 
of  special  agreement  charge  the  ship  with  commissions  on  charters 
and  freights  (Williamson  v.  Sine,  [1891]  1  Ch.  390).  He  is  not  a 
"  seaman  "  and  therefore  has  no  maritime  lien  for  his  pay  (The  Buhy, 
No.  2,  [1898]  P.  59 ;  8  Asp.  421 ;  M.  S.  A.,  1894,  s.  742). 

Ship, — Moktgage. — The  M.  S.  A.  has  the  following  statutory 
provisions  with  regard  to  mortgages  of  ships  or  shares  therein : — Mort- 
gages of  ships  must  be  made  on  a  statutory  form,  and  be  entered  in  the 
register  (s.  31) ;  where  a  mortgage  is  discharged,  an  entry  to  that  effect 
must  be  made  in  the  register,  but  the  entry  of  its  having  been  made 
must  not  be  erased  (Chasteauneuf  v.  Capeyron,  1882,  7  App.  Cas.  127; 
8.  32) ;  but  the  entry  of  an  invalid  mortgage  of  a  ship  may  be  ordered 
by  the  Court  to  be  expunged  from  the  register  by  virtue  of  its  inherent 
jurisdiction  (Broad  v.  Broomhall,  [1906]  1  K.  B.  571).  The  priority  of  mort- 
gages is  determined  not  by  their  respective  dates  but  by  the  dates  of  their 
entry  in  the  register,  in  spite  of  any  express,  implied,  or  constructive 
notice  (s.  33);  and  unregistered  mortgages  will  not  affect  purchasers 
who  have  completed  the  purchase  of  a  ship  without  notice  of  them 
{Barclay  v.  Poole,  [1907]  2  Ch.  289).  This  does  not  prevent  the  general 
principle  applying  that  a  first  mortgagee  whose  mortgage  is  taken  to 
cover  future  advances  cannot  claim  in  priority  over  a  second  mortgagee 
the  benefit  of  advances  made  after  he  had  notice  of  a  second  mortgage,  for 
priorities  in  such  a  case  do  not  depend  on  the  date  of  the  instrument,  but 
the  state  of  facts  independent  of  that  (The  Benwell  Tower,  1895,  8  Asp. 
13).  The  mortgagee  is  not  treated  as  the  owner  of  the  ship  except  so 
far  as  is  necessary  for  making  the  ship  or  share  available  as  security  for 
the  mortgage  debt  (s.  34) ;  a  mortgagee  has  power  of  sale,  but  where 
there  is  more  than  one  a  subsequent  mortgagee  has  not,  except  by  order 
of  a  Court,  without  the  concurrence  of  a  prior  mortgagee  (s.  35) ;  a  mort- 


SHIP;  SHIPOWNERS  387 

gage  is  not  affected  by  the  bankruptcy  of  the  mortgagor  (s.  36);  mortgages 
may  be  transferred  by  a  statutory  form,  which  must  be  registered  (s.  37) ; 
and  similarly,  transmission  of  interest  in  a  mortgage  by  death,  bankruptcy, 
marriage,  or  any  other  lawful  means  must  be  authenticated  by  statutory 
requirements,  and  registered  (s.  38).  A  registered  owner  who  wishes  to 
mortgage  a  ship  or  share  therein  in  respect  of  which  he  is  registered  at 
a  place  out  of  the  country  where  the  ship's  port  of  registry  is  situate 
can  obtain  a  certificate  for  that  purpose  from  the  registrar  after  giving 
him  certain  particulars,  and  such  certificate  must  contain  those  particulars 
(ss.  39-42).  Such  certificates  are  subject  to  certain  regulations,  of  which 
the  most  noteworthy  are  that  the  mortgage  is  registered  by  being 
indorsed  on  the  certificate  by  a  registrar  or  consul ;  a  mortgage  so  made 
in  good  faith  is  not  to  be  impeached  by  reason  of  the  person  by  whom 
the  power  was  given  dying  before  the  mortgage  was  made ;  and  under  a 
certificate  specifying  the  place  at  which  the  power  is  to  be  exercised  and 
a  limit  of  time  not  more  than  twelve  months  for  the  same  purpose,  a 
mortgage  made  in  good  faith  to  a  mortgagee  without  notice  is  not  to  be 
impeached  by  reason  of  the  bankruptcy  of  the  person  by  whom  the 
power  was  given;  mortgages  so  registered  have  priority  over  subse- 
quently created  mortgages ;  such  mortgages  rank  according  to  the  date 
of  their  registration,  and  not  according  to  the  date  of  their  being  made ; 
mortgagees  so  registered  have  the  same  rights  and  liabilities  as  they 
would  have  if  their  mortgages  were  registered  in  the  register  book ;  and 
their  discharge  and  cancellation  must  also  be  registered  (s.  43).  If  such 
a  certificate  be  lost  a  new  one  may  be  issued  (s.  45) ;  a  certificate  may 
be  revoked  by  the  shipowner ;  and  if  so  its  revocation  must  be  registered 
{s.  46).  Though  notice  of  trusts  is  not  received  in  the  register,  and 
registered  owners  can  dispose  absolutely  of  a  registered  ship  or  share 
therein,  interests  arising  under  contracts  or  other  equitable  interests 
may  be  enforced  by  or  against  owners  and  mortgagees  of  ships  in  respect 
of  their  interest  therein,  in  the  same  manner  as  in  respect  of  any  other 
personal  property  (ss.  56-57) ;  e.g.  equitable  mortgages  may  be  created 
by  deposit  of  builder's  certificate  of  unfinished  ship  (/n  re  Softley,  1875, 
L.  E.  20  Eq.  746),  or  deposit  of  registered  mortgage  of  ship  {Lacon  v. 
Liffen,  1862,  32  L.  J.  Ch.  25),  and  beneficial  owners  of  ships  or  shares  in 
them  are  liable,  like  registered  owners,  to  all  pecuniary  penalties  imposed 
■on  shipowners  (s.  58).  The  Court  looks  behind  the  register  to  see  the 
real  nature  of  the  transaction  {Ward  v.  Becky  1863,  13  C.  B.  N.  S.  668 ; 
The  Innisfallen,  1866,  L.  R  1  Ad.  &  Ec.  72),  but  not  in  order  to 
dispossess  an  innocent  holder  for  value  without  notice  of  fraud  {The 
Horlock,  1877,  2  P.  D.  243;  and  see  Von  Freeden  v.  Hull,  1907,  10 
Asp.  394). 

The  mutual  rights  of  a  mortgagor  and  mortgagee  of  a  ship  depend  on 
the  principle  stated  in  sec.  34,  above.  The  mortgagor,  so  long  as  he  is 
Allowed  to  remain  in  possession,  retains  all  the  rights  and  powers  of 
ownership  over  the  ship ;  and  his  contracts  with  regard  to  the  ship  are 
good  against  the  mortgagee,  so  long  as  they  do  not  materially  impair  his 
security;  e.g.  a  beneficial  charter-party  by  mortgagor  is  good  against 
mortgagee  (CoIHtis  v.  Lamport,  1864,  34  L.  J.  Ch.  196);  but  not  one 
which  impairs  their  security  {The  Heather  Bell,  [1901]  P.  272 ;  Law 
Guarantee  and  Trust  Society  v.  Russian  Bank  for  Foreign  Trade,  [1905] 
1  K.  B.  815;  The  Manor,  [1907]  P.  339);  and  a  nominal  freight  stipu- 
lated in  a  bill  of  lading  owing  to  the  goods  having  been  shipped  on 
shipowner's  account  is  good  against  the  mortgagee  {Keith  v.  Burrows, 


388  SHIP ;  SHIPOWNERS 

1877,  2  App.  Cas.  636,  645,  654).  Where  a  ship  is  under  charter-party 
at  the  time  of  the  mortgage,  the  mortgagee  is  bound  by  her  engagement 
unless  it  be  of  an  unusual  kind  which  would  prejudice  the  sale  of  the 
ship  {De  Mattos  v.  Gibson,  1859,  28  L.  J.  Ch.  498 ;  The  Celtic  King,  [1894] 
P.  175,  engagement  for  five  years) ;  and  a  mortgagee  may  be  restrained 
by  injunction  from  interfering  with  the  execution  of  the  charter-party. 
Where  a  mortgagee  arrested  a  ship  before  the  mortgage  money  became 
due  in  a  possession  action  while  she  was  under  a  beneficial  charter-party, 
the  Court  ordered  her  release  {The  Blanche,  1887,  6  Asp.  272) ;  and  a 
mortgagee  of  shares  in  a  ship  of  which  he  has  not  taken  possession 
cannot  bring  a  restraint  action  against  his  co-owners  who  have  let  the 
ship  under  such  a  charter-party  without  his  consent  {The  Innisfallen, 
1866,  L.  E.  1  Ad  &  Ec.  72) ;  nor  can  he  arrest  her  in  such  a  case  though 
he  takes  possession  of  the  shares  before  she  sails  {The  Maxima,  1878, 

4  Asp.  21).  A  mortgagee  cannot  object  to  a  charter-party  being  carried 
out  on  the  ground  that  it  will  remove  the  ship  out  of  the  jurisdiction 
and  make  his  security  more  difficult  to  enforce  {The  Fanchon,  1880, 

5  P.  D.  173),  and  the  burden  is  on  him  to  prove  that  his  security  will 
be  prejudiced  {ibid.).  So  long  as  the  mortgagee  does  not  interfere  or 
claim  possession,  he  is  taken  to  have  allowed  the  mortgagor  to  make  all 
engagements  for  the  employment  of  the  ship  usually  entered  into  by 
the  person  having  apparent  control  and  ownership  of  her.  Where  a 
ship  was  at  the  time  that  the  mortgagee  demanded  possession  engaged 
on  a  voyage,  the  mortgagee  was  held  not  entitled  to  possession  till  the 
conclusion  of  the  voyage  nor  to  compensation  for  the  use  and  "occupation 
of  the  ship  from  the  time  of  notice  of  such  demand  till  delivery  up  of 
the  ship  {Johnson  v.  Royal  Mail  S.  C,  1867,  L.  R.  3  C.  P.  38) ;  and  a 
mortgagor  has  been  given  damages  for  the  wrongful  arrest  of  a  ship  by 
the  mortgagee  {The  Cathcart,  1867,  L.  R.  1  Ad.  &  Ec.  314). 

On  the  other  hand,  the  mortgagee  has  the  right,  in  order  to  make  the 
ship  available  as  a  security,  to  take  possession  of  her  and  collect  the 
freight,  and  yet  he  is  free  from  liabilities  to  which  he  might  otherwise 
be  liable  as  owner  in  possession  (Lord  Campbell,  Dickinson  v.  Kitchen, 
1858,  8  El.  &  Bl.  789,  798).  He  may  prevent  the  ship  sailing  uninsured 
if  the  mortgagor  has  agreed  to  insure  {Laming  v.  Scater,  1889,  16  Sess. 
Ca.  (4th)  828).  On  taking  possession  he  is  entitled  to  the  benefit  of 
outstanding  contracts  made  by  the  mortgagor  {Collins  v.  Lamport,  1864, 
34  L.  J.  Ch.  196,  200) ;  and  because  he  is  owner  he  is  entitled  to  the 
height  {Livei-pool  Marine  Credit  Co.  v.  Wilson,  1872,  L.  R.  7  Ch.  507;, 
Keith  V.  Barrows,  1877,  2  App.  Cas.  636).  But  in  order  to  defeat 
the  mortgagor's  right  to  freight  he  must  take  actual  or  constructive 
possession  before  it  is  payable  {Rusden  v.  Pope,  1868,  L.  R.  3  Ex. 
269);  but  he  has  no  right  to  freight  already  earned  but  not  paid 
before  he  takes  possession  {Shillito  v.  Biggart,  [1903]  1  K.  B.  683 ; 
Essarts  v.  Whinney,  1903,  9  Asp.  363);  and  as  between  mortgagees 
of  a  ship  and  a  solicitor's  right  to  a  charging  order  on  the  property, 
see  The  Birnam  Wood,  1906,  10  Asp.  325  ;  he  cannot  intercept  freight 
by  merely  giving  the  charterer  or  person  liable  to  pay  it  notice 
before  the  freight  is  actually  earned  {Liverpool  Marine  Credit  Co.  v. 
Wilson,  above,  at  p.  511);  but  where  actual  physical  possession  of  the 
ship  is  impossible,  e.g.  by  her  being  at  sea,  a  notice  to  the  mortgagor  and 
to  charterers  is  constructive  possession  {Rusden  v.  Pope,  above).  A 
mortgagee  cannot  recover  freight  which  he  has  allowed  the  mortgagor 
to  receive  {Wilson  v.  Wilson,  1872,  L.  R.  14  Eq.  32  ;   Willis  v.  Palmer,. 


SHIP;  SHIPOWNERS  889 

1859,  7  C.  B.  K  S.  340 ;  Gardner  v.  Cazeivove,  1856,  1  H.  &  N.  423).  He 
has  the  right  to  have  the  expenses  of  taking  possession,  etc.,  allowed  in 
the  account  between  him  and  the  mortgagor  (  Wilkes  v.  Saunion,  1877, 
7  Ch.  D.  188) ;  and  he  can  recover  from  the  mortgagor  wages  of  crew  or 
master  which  he  has  had  to  pay  in  order  to  get  possession  {TJie  Orchis, 
1890,  15  P.  D.  38);  and  where  vendors  sold  a  ship  to  purchasers  who 
were  to  acquire  the  property  in  her  as  instalments  of  the  price  were 
paid,  and  the  purchasers  mortgaged  the  shares  transferred  to  them,  and 
worked  the  ship  and  incurred  maritime  liens  and  went  bankrupt,  and 
the  vendors  resumed  possession  of  the  ship,  paid  off  the  maritime  liens, 
paid  a  sum  to  cancel  her  charter-party,  repaired  her,  and,  with  the  consent 
of  mortgagees,  sold  her  to  foreigners,  it  was  held  that  the  vendors  could 
not  deduct  from  the  mortgagees'  share  of  the  price  for  the  sum  paid  to 
clear  off  the  liens,  or  cancel  the  charter,  or  for  repairs,  there  being  no 
personal  liability  on  the  mortgagees  in  respect  of  any  of  these  claims 
(The  Ripon  City,  No.  2,  [1898]  P.  78).  The  mortgagee  is  liable  to  the 
mortgagor  for  loss  or  damage  to  her  by  his  employment  or  sale  of  her 
{Marriott  v.  Anchor  Rev.  Co.,  1860,  2  Gif.  457 ;  Brouard  v.  Dumaresque, 
1841,  3  Moo.  P.  C.  457 ;  13  E.  R.  186);  but  he  has  power  to  sell  her  or 
part  of  her,  and  may  insist  on  this  instead  of  joining  in  a  charter-party 
with  other  persons  interested  in  her  {Samuel  v.  JoiieSy  1863, 7  L.  T.  760;  The 
Fairlic,  1868,  37  L.  J.  Ad.  66);  and  a  judgment  creditor  of  the  mortgagor 
cannot  take  the  ship  in  execution,  for  that  would  impair  the  mortgagee's 
security  {Dickinson  v.  Kitchen,  1858,  8  E.  &  B.  789). 

A  mortgage  on  a  ship  granted  after  an  act  of  bankruptcy  by  a  mort- 
gagor is  protected  under  the  Bankruptcy  Act  if  the  mortgagee  had  no 
notice  of  it  at  the  date  of  the  mortgage,  though  the  ship  remains  in  the 
possession  of  the  mortgagor  up  to  the  date  of  the  receiving  order  {The 
Ruby,  1900,  83  C.  P.  438 ;  9  Asp.  146).  Mortgagees  in  possession  can 
obtain  a  judgment  declaratory  of  the  validity  of  the  mortgage  in  order 
to  assert  their  rights  in  legal  proceedings  brought  abroad  by  necessaries' 
men  against  the  ship  {The Manor,  1903,  9  Asp.  482), 

The  mortgagee  taking  possession  is  bound  by  any  lien  created  by 
the  mortgagor  when  in  possession,  and  necessary  to  keep  the  ship  sea- 
worthy {Williams  v.  Allmp,  1861,  10  C.  B.  N.  S.  417);  but  he  has 
priority  over  claims  which  do  not  give  either  a  maritime  or  possessory 
lien,  e.g.  necessaries,  and  damage  to  cargo  {The  Padjic,  1864,  B.  &  L.  243 ; 
The  Scio,  1867,  L.  R.  1  Ad.  &  Ec.  353 ;  The  Pieve  Supeinore,  1874,  L  R. 
5  P.  C.  482 ;  The  Lyons,  1887,  6  Asp.  199 ;  see  Maritime  Lien).  When 
in  possession  he  is  liable  for  the  disbursements  of  his  agent  to  the  same 
extent  as  the  owner  would  be  {Havilland  v.  Thomas,  1864,  3  Sess.  Ca. 
(3rd)  313);  but  not  for  necessaries  ordered  by  the  master  not  acting  as 
his  agent  {The  Troubadour,  1866,  L.  R.  1  Ad.  &  Ec.  302).  The  mort- 
gagee of  ship  or  a  purchaser  from  him  has  a  right  to  freight  superior  to 
that  of  assignee  of  freight  {Brown  v.  Tanner,  1868,  L.  R.  3  Ch.  597 ; 
JDobbyn  v.  Comcrford,  1860,  Ir.  10  Ir.  Ch.  327) ;  and  charterers  cannot 
make  deductions  from  the  freight  payable  to  him  {Tanner  v.  Phillips, 
1872,  42  L.  J.  Ch.  125);  but  a  part-owner  can  deduct  the  proportion  of 
expenses  of  the  voyage  from  the  freight  payable  to  a  mortgagee  of  his 
co-owner  {Alexander  v.  Simms,  1854,  23  L.  J.  Ch.  721).  A  mortgagee 
can  get  a  receiver  of  freight  appointed  {The  Fav^t,  1887,  6  Asp.  126). 
If  he  gets  the  ship  sold,  his  costs  up  to  such  sale  in  the  mortgage  action 
are  satisfied  as  against  a  necessary  man  with  a  possessory  lien  {The 
Sherbro,  1883,  5  Asp.  88).     In  defending  an  action  for  wages  and  dis- 


390  SHIP;  SHIPOWNERS 

bursements  he  can  rely  on  defences  available  to  the  owner  {The  Chieftain, 
1863,  B.  &  L.  212);  and  may  get  the  ship  released  on  giving  bail  {The 
BiTigdove,  1858,  Swa.  Ad.  310). 

By  the  Admiralty  Court  Act,  1840,  the  Court  was  allowed  cognisance 
of  claims  and  causes  of  action  in  respect  of  the  mortgage  of  any  ship 
which  or  the  proceeds  of  which  were  under  the  hand  of  the  Court, 
whether  the  ship  was  foreign  or  British,  and  the  mortgage  was  regis- 
tered or  not  (s.  3;  Williams  and  Bruce,  43,  44);  and  the  Act  of  1861 
extended  the  jurisdiction  to  cases  where  proceeds  were  not  under  arrest 
of  Court,  if  the  mortgage  was  duly  registered  under  the  M.  S.  A.  (s.  11 ; 
and  see  The  Swiftsure,  1900,  9  Asp.  65,  as  to  accounts  between  mortgagor 
and  mortgagee  of  ship). 

Shipmaster  and  Mate. — The  powers  and  duties  of  a  master  are 
now  largely  regulated  by  statute  (the  M.  S.  A.,  1894);  but  they  are 
also  recognised  and  defined  at  common  law. 

His  authority  as  regards  his  owners  is  thus  tersely  defined :  "  The 
authority  of  a  master  of  a  ship  is  very  large,  and  extends  to  all  acts 
that  are  usual  and  necessary  for  the  use  and  employment  of  the  ship ; 
but  it  is  subject  to  several  well-known  limitations.  He  may  make  con- 
tracts for  the  hire  of  the  ship,  but  cannot  vary  those  which  the  owner 
has  made.  He  may  take  up  money  in  foreign  ports,  and,  under  certain 
circumstances,  at  home,  for  necessary  disbursements  for  repairs,  and 
bind  his  owners  for  repayment.  But  his  authority  is  limited  by  the 
necessity  of  the  case,  and  he  cannot  make  them  responsible  for  money 
not  actually  necessary  for  these  purposes,  although  he  may  pretend  that 
it  is.  He  may  make  contracts  to  carry  goods  or  freight,  but  he  cannot 
bind  his  owners  by  a  contract  to  carry  freight  free.  So  with  respect  to 
goods  put  on  board,  he  may  sign  a  bill  of  lading  and  acknowledge  the 
nature,  condition,  and  quality  of  the  goods.  Constant  usage  shows  that 
masters  have  that  general  authority,  and  if  a  more  limited  one  is  given, 
a  party  not  informed  of  it  is  not  affected  by  such  limitation.  He  is  a 
general  agent  to  perform  all  things  relating  to  the  usual  employment  of 
his  ship,  and  the  authority  of  such  an  agent  to  perform  all  things  usual 
in  the  line  of  business  in  which  he  is  employed  cannot  be  limited  by  any 
private  order  or  directions  not  known  to  the  party  dealing  with  him  " 
(Jervis,  C.J.,  Grant  v.  Norway,  1851,  20  L.  J.  C.  P.  93,  98).  His  authority 
as  agent  for  his  owners  thus  extends  to  all  cases  where  they  are  not  on 
the  spot,  and  where  he  acts  within  the  scope  of  what  is  the  ordinary  and 
proper  management  of  the  ship  {The  Fanny  and  Mathilda,  1883,  5  Asp. 
75,  79).  He  may  order  necessaries  for  the  ship  and  bind  the  owners  for 
them,  unless  they  have  an  agent  in  the  port,  or  unless  the  port  is  a  home 
port,  and  they  can  be  communicated  with  {Gunn  v.  Roberts,  1874,  L.  E. 
9  C.  P.  331,  336).  He  may  recover  any  expenditure  so  made  from  them 
and  any  expenses  consequential  thereon  {The  James  Seddon,  1866,  L.  E. 
1  Ad.  &  Ec.  62).  For  his  power  to  bind  his  owners  in  various  ways  on 
account  of  the  ship,  see  Bottomry  ;  Bills  of  Lading  ;  Charter-Party. 
If  the  ship  is  foreign,  his  authority  to  contract  on  behalf  of  his  owner 
is  limited  by  the  law  of  the  flag  (see  Affreightment).  Eor  his  power 
to  bind  his  owners  in  cases  of  salvage,  see  Salvage  ;  and  in  collisions, 
see  Collisions  at  Sea. 

Primd  facie  he  is  the  servant  of  the  registered  owner  of  the  ship 
{Hihbs  V.  Boss,  L.  E.  1  Q.  B.  534).  He  is  appointed  by  the  owners,  or 
by  the  majority  of  them  who  are  working  the  ship;  but  in  cases  of 
necessity  he  may  be  appointed  by  a  part-owner,  a  consul,  a  person  to 


SHIP;  SHIPOWKEKS  391 

whom  the  original  master  has  applied  for  assistance,  consignees  of  cargo, 
or  the  captain  of  a  British  man-of-war  (see  cases,  Abbott,  217  (14th  ed.)). 
He  may  be  dismissed  by  the  majority  of  owners,  but  only  with  proper 
notice ;  if  he  is  wrongly  dismissed  he  should  not  try  to  keep  possession 
of  the  ship  or  her  papers,  on  which  he  has  no  lien  {The  St.  Olaf,  1876, 
3  Asp.  268),  but  should  bring  an  action  for  damages  for  wrongful  dis- 
missal {Green  v.  Wright,  1876,  1  C.  P.  D.  591).  He  cannot  leave  his 
ship  without  giving  reasonable  notice  to  his  owners,  unless  compelled 
by  circumstances  {The  Rajah  of  Cochin,  1859,  Swa.  Ad.  473,  477).  He 
is  liable  for  contracts  made  in  his  name ;  and  also  for  his  own  torts,  e.g. 
improper  jettison,  sale,  or  refusal  to  deliver,  or  bad  stowage  {Hayn  v. 
Cullifcyrd,  1879,  4  C.  P.  D.  182). 

It  is  his  duty  in  all  circumstances  to  take  care  of  the  cargo  (see 
Cargo)  as  servant  of  the  shipowner ;  but  besides  being  agent  for  the 
shipowner  he  is  also,  in  case  of  necessity,  agent  for  the  cargo  owner,  e.g. 
he  may  institute  a  suit  in  rem  on  behalf  of  cargo  against  a  ship  which 
has  collided  with  his  in  a  foreign  port  {The  Reinheck,  1889,  60  L.  T.  209) ; 
and  he  may  incur  expenses  on  behalf  of  the  cargo,  and  has  a  lien  on  it 
for  them  {Kingston  v.  Wendt,  1876,  1  Q.  B.  D.  367),  and  may  raise 
money  on  it  by  giving  a  bottomry  or  respondentia  bond  (see  Bottomry). 
His  authority  over  the  cargo  depends  on  the  law  of  the  flag  (see 
Affreightment).  He  may  sell  perishing  goods  in  case  of  need ;  but 
it  is  his  duty  to  use  every  means  to  save  them,  and  before  selling  them 
he  must,  if  possible,  communicate  with  their  owner,  for  an  improper 
sale  will  not  pass  the  property  in  them.  He  may  tranship  the  goods 
if  the  shipowner  cannot  or  will  not  let  him  carry  them  on ;  but  must 
not  charge  more  than  a  fair  rate  for  so  doing  (see  Cargo).  For  his 
rights  over  the  crew  and  over  passengers,  see  Crew  ;  Passengers. 

Under  the  M.  S.  A.,  1894,  British  foreign-going  ships  and  British 
home-trade  passenger  ships  going  to  sea  from  any  place  in  the  United 
Kingdom,  and  foreign  steamships  carrying  passengers  between  places 
in  the  United  Kingdom,  must  carry  certificated  masters,  and  if  of  more 
than  a  certain  tonnage,  a  certificated  mate  or  mates,  s.  92  (1).  Certifi- 
cates of  competency  are  granted  after  examination  by  local  marine 
boards  or  by  the  Board  of  Trade :  certain  persons,  such  as  lieutenants, 
sub-lieutenants,  navigating  lieutenants,  or  sub-lieutenants  in  the  Royal 
Navy,  or  lieutenants  in  the  Indian  Marine,  are  entitled  to  certificates 
as  masters  without  examination ;  such  certificates  granted  by  colonial 
authorities  may,  by  Order  in  Council,  be  given  the  same  effect  as  those 
above ;  and  a  master  of  a  foreign-going  ship  must  produce  his  certificate 
to  the  superintendent  before  whom  he  signs  the  agreement  with  the 
crew  (ss.  92-104).  His  certificate  may  be  cancelled  or  suspended  by 
the  Board  of  Trade  or  a  Court  holding  a  shipping  inquiry  (ss.  469-470) ; 
and  he  may  be  removed  from  his  command  by  the  High  Court,  and  a 
new  master  appointed  in  his  place  (s.  472).  For  the  master's  duties  in 
regard  to  engaging  the  crew,  see  Crew  ;  apprentices,  see  Apprentices 
(Sea);  discipline  and  custody  of  seamen's  property,  see  Seaman — a 
seaman  is  rated  able-bodied  when  he  has  served  at  sea  three  years 
before  the  mast,  but  employment  of  fishermen  in  decked  registered 
fishing  vessels  counts  as  sea  service  up  to  the  period  of  two  years  of 
that  employment,  and  the  rating  of  A.B.  is  only  granted  after  at  least  one 
year's  sea  service  in  a  trading  vessel  in  addition  to  two  or  more  years' 
sea  service  on  board  a  decked  registered  fishing  vessel  (M.  S.  A.,  1894, 
s.  126;  1906,  s.  58);  seamen's  wages,  see  Wages;  logs,  see  Logbook; 


392  SHIREMOOT 

passengers,  see  Passengers,  Sea  ;  fishermen,  see  Fishing  Boats  ;  navi- 
gation and  collision,  see  Collisions  at  Sea  and  Salvage  ;  draught  of 
water  and  loadline,  see  Loadline;  dangerous  goods,  and  grain  and 
timber  cargoes,  see  those  heads;  pilotage,  see  Pilots. 

The  mate  is  the  next  person  in  authority  to  the  master,  and  on  the 
latter's  death  or  incapacity  he  succeeds  to  his  powers  and  duties  {Hanson 
V.  Boyden,  1867,  L.  R  3  C.  P.  47 ;  Abbott,  217).  Under  the  M.  S.  A.  in 
certain  ships  he  must  have  a  certificate  of  competency,  and  may,  like 
the  master,  be  deprived  of  it.  For  other  powers  and  duties  of  mates, 
see  ss.  138  (production  of  ship's  papers),  222  (desertion),  599  (pilotage). 
As  to  accommodation  of  seamen  and  passengers,  see  Crew  ;  Passengers, 
Sea. 

Ship's  Papers. — Ships  generally  are  transferred  by  bill  of  sale,  and 
for  registered  British  ships  this  is  prescribed  by  statute  (M.  S.  A., 
1894,  8.  24) ;  a  power  of  sale  may  be  conferred  by  certificate  of  sale  for 
ships  which  are  situate  out  of  the  country  of  their  registry,  subject  to 
certain  requirements  and  restrictions  (ss.  39-42),  viz.,  a  certificate  can 
only  be  granted  for  sale  of  a  ship  and  the  power  must  be  exercised 
according  to  the  certificate ;  a  sale  made  in  good  faith  thereunder  to 
a  purchaser  for  valuable  consideration  is  not  to  be  impeached  owing  to 
the  person  granting  the  power  dying  before  the  sale  is  made ;  nor  is  it 
invalidated  by  bankruptcy  if  the  certificate  specifies  a  place  and  limit 
of  time  up  to  twelve  months  for  the  exercise  of  the  power ;  it  must  be 
by  bill  of  sale  to  a  person  qualified  to  own  a  British  ship,  with  further 
provisions  as  to  registering,  and  power  to  replace  or  revoke  certificates 
(ss.  44-46).  See  Bill  of  Sale,  British  Ship.  Where  fifty-eight  shares 
in  a  ship  were  sold  by  twenty  bills  of  sale  to  a  firm  it  was  held  that  the 
transfer  fees,  which  are  based  on  the  gross  tonnage  represented  by  cash 
transfer,  were  payable  by  a  separate  scale  on  each  transfer  {Harrowing 
S.  S.  Co.  V.  Tooheij,  [1900]  2  Q.  B.  28).  The  property  in  a  ship  passes 
like  that  in  other  goods  under  the  Sale  of  Goods  Act  {Laing  v.  Barclay, 
[1908]  App.  Cas.  35). 

There  are  papers  and  documents  required  for  the  manifestation 
and  protection  of  ship  and  cargo  by  the  law  of  the  countries  from 
and  to  which  the  ship  is  bound,  and  by  the  law  of  nations  in  general, 
and  treaties  between  particular  States,  e.g.  registry  certificate,  bill  of 
health,  bill  of  lading,  etc. ;  and  see  Marine  Insurance  and  Registry. 
The  master  must  not  take  on  board  false  or  colourable  papers,  for 
these  in  war  time  subject  the  ship  to  capture  or  detention  (Abbott, 
225  (5th  edit.),  510  (14th  edit.)).  Under  the  M.  S.  A.  there  are 
certain  documents,  viz.,  agreement  with  the  crew,  list  of  crew,  inden- 
tures, and  assignment  of  apprenticeship,  etc.,  which  must  be  delivered 
to  the  proper  officials  for  examination  and  recording  (see  Crew  ;  Appren- 
tices (Sea);  Logbook);  and  a  master  giving  up  command  of  a  ship  for 
any  reason  must  hand  over  to  his  successor  all  documents  relating  to 
the  navigation  of  ship  and  the  crew  which  are  in  his  custody  (M.  S.  A., 
ss.  257,  258). 

[^Authorities. — Abbott,  Merchant  Shipping,  14th  edit.,  1901 ;  Tem- 
perley,  Merchant  Shipping  Acts,  2nd  edit.,  1907 ;  Carver,  Carriage  hy 
Sea,  4th  edit.,  1905 ;  Williams  and  Bruce,  Admiralty  Bractice,  3rd  edit., 
1902.] 


Shiremoot. — See  County  Courts;  Folcmote. 


SHOP;  SHOP  KEGULATION  ACTS  393 

Shooting;  Shooting^  with  Intent.— See  Batteky; 
Bodily  Harm;  Firearms;  Mayhem;  Murder. 

Shop;  Shop  Regulation  Acts.— The  Shop  Regulation 
Acts,  1892  to  1904,  is  the  short  title  given  to  the  Shop  Hours  Acts,  1892, 
55  &  56  Vict.  c.  62 ;  1893, 56  &  57  Vict.  c.  67 ;  1895, 58  Vict.  c.  5 ;  and  1904, 
4  Edw.  VII.  c.  31 ;  and  the  Seats  for  Shop  Assistants  Act,  1899,  62  &  63 
Vict.  c.  21.  The  1895  Act  was  rendered  necessary  by  the  decision  in 
Hammond  v.  Pvlsford,  [1895]  1  Q.  B.  223.  The  word  "  shop  "  in  the  1892 
Act  is  defined  to  mean  any  shop,  whether  retail  or  wholesale,  any  market, 
stall,  and  warehouse  in  which  assistants  are  employed  for  hire,  and  any 
licensed  public-house  or  refreshment  house  (s.  9).  No  young  person 
{i.e.  no  one  under  the  age  of  eighteen  years)  may  be  employed  in  or 
about  a  shop  for  more  than  seventy-four  hours,  including  meal-times,  in 
one  week.  If  a  young  person  be  employed  on  the  same  day  both  in 
a  shop  and  in  a  factory,  he  or  she  must  not  work  in  the  shop  and  factory 
together  more  than  seventy-four  hours,  including  meal  times,  in  one 
week  (see  a  similar  provision  in  the  Factory  and  Workshop  Act,  1901, 
s.  31,  Vol.  V.  p.  682).  The  owner  of  every  shop  must  exhibit  in  a  con- 
spicuous place  in  it  a  notice  stating  the  number  of  hours  during  which 
a  young  person  may  be  lawfully  employed  in  that  shop  (s.  4).  In  W.  H. 
Smith  &  Son  v.  Kyle,  [1902]  1  K.  B.  286,  it  was  held  that  a  temporary 
bookstall  consisting  of  a  board  laid  on  trestles  was  not  a  shop  within 
the  meaning  of  sec.  4  of  the  1892  Act.  If  he  fail  to  exhibit  such  a  notice, 
or  if  any  young  person  be  employed  in  his  shop  for  longer  hours  than 
the  law  allows,  the  employer  is  liable  to  a  fine  (1892,  c.  62,  ss.  5,  6,  7 ; 
1895,  c.  5,  s.  1 ;  see  also  sees.  143-147  of  the  Factory  and  Workshop  Act^ 
1901).  The  council  of  any  county  or  borough  (in  the  City  of  London, 
the  Common  Council)  may  appoint  inspectors  to  enforce  these  Acts,  each 
of  whom  has  power  to  enter  any  shop  at  all  reasonable  times  to  make  all 
inquiries  that  he  deems  necessary,  and  to  examine  any  of  the  employes, 
apart  from  the  employer,  if  he  thinks  fit.  The  salaries  of  such  inspectors, 
and  all  other  expenses  incurred  by  the  council  in  the  execution  of  these 
Acts,  are  defrayed  out  of  the  county  or  borough  fund  (1893,  c.  67,  s.  2). 

The  question.  What  is  an  employment  "  in  or  about  "  a  shop  ?  came 
before  the  Divisional  Court  in  the  case  of  Collman  v.  Roberts,  [1896] 
1  Q.  B.  457 ;  and  the  Court  (Lindley  and  Kay,  L.JJ.)  decided  that  a  boy 
whose  work  was  done  partly  inside  the  shop  and  partly  away  from  the 
shop,  fetching  newspapers  and  delivering  them  to  the  customers,  was 
employed  "in  or  about"  the  shop  within  the  meaning  of  these  Acts,  and 
must,  therefore,  not  be  employed  for  more  than  seventy-four  hours  a 
week,  including  meal  hours. 

The  Shop  Hours  Act,  1904,  provides  that  a  "  local  authority  "  may 
by  order  fix  the  hours  on  the  several  days  of  the  week  at  which,  through- 
out its  area  or  a  specified  part  of  it,  all  shops,  or  shops  of  any  specified 
class,  are  to  be  closed  for  serving  customers.  The  hour  is  not  to  be 
earlier  than  7  p.m.,  except  on  one  specified  day  of  the  week,  when  the 
hour  may  not  be  earlier  than  1  p.m.  An  order  made  under  this  Act  is 
called  "  a  closing  order."  It  will  not  apply  to  any  fair  lawfully  held,  or 
to  a  bazaar  for  charitable  purposes,  or  to  any  shop  where  the  only  trade 
carried  on  is  one  of  the  following : — 

Post  office  business. 

The  sale  of  medicines  and  medical  and  surgical  appliances. 

The  sale  by  retail  of  intoxicating  liquors  for  consumption  on  or  off 
the  premises. 

/ 


394  SHOET  CAUSE 

The  sale  of  refreshments  for  consumption  on  the  premises. 

The  sale  of  tobacco  and  other  smokers'  requisites. 

The  sale  of  newspapers. 

The  business  carried  on  at  a  railway  bookstall  or  at  a  railway 
refreshment  room  (ss.  1  and  2  and  schedule).  Such  an  order  must  be 
confirmed  by  a  central  authority,  which  in  England  is  a  Secretary  of 
State.  The  central  authority  may  at  any  time  on  the  application  of  the 
local  authority  revoke  a  closing  order  either  absolutely  or  so  far  as  it 
affects  any  particular  class  of  shops.  But  any  such  revocation  shall  be 
without  prejudice  to  the  making  of  any  new  closing  order  (s.  4).  The 
expression  "  shop "  includes  any  premises  or  place  where  retail  trade 
(including  the  business  of  a  barber)  is  carried  on.  The  expression  "  local 
authority"  includes  any  council  or  other  authority  having  power  to 
appoint  inspectors  under  the  Shop  Hours  Acts,  1892  to  1895,  as  above 
mentioned,  also  in  London,  outside  the  City,  a  metropolitan  borough 
council  and  outside  London  an  urban  district  council  with  a  population 
in  1901  of  over  20,000  (s.  8).  Where  an  order  is  in  force  a  county 
council  may  delegate  to  a  metropolitan  borough  or  council  its  powers 
under  the  Shop  Hours  Act,  1892  to  1895. 

The  Act  prescribes  the  manner  in  which  the  order  is  to  be  made. 
The  local  authority  is  to  be  satisfied  that  it  is  expedient  to  make  the 
order  and  that  it  is  approved  by  the  occupiers  of  at  least  two-thirds  of 
the  shops  to  be  affected  by  it  (s.  3).  Any  person  who  contravenes  the 
provisions  of  such  an  order  is  liable  to  a  fine  of  £1,  £5,  or  £20  for  a  first, 
second,  or  third  offence  respectively.  If  a  closing  order  has  been  duly 
confirmed  by  the  central  authority  no  person  prosecuted  for  breach  of  it 
can  raise  any  objection  to  the  order  on  the  ground  that  the  preliminary 
steps  recognised  by  sec.  3  above  were  not  taken  before  the  order  was 
made  {Hamilton  v.  Fyfe,  [1907]  S.  C.  (J.)  79).  Where  a  local  authority 
has  duly  made  an  early  closing  order  the  authority  cannot  be  restrained 
by  injunction  from  completing  or  proceeding  with  it. 

An  order  may  fix  a  closing  hour  on  one  day  only  of  a  week.  "  Barbers 
and  hairdressers  "  may  be  treated  as  one  class  of  shop  (A.-G.  v.  Brighton 
Corporation,  1907,  77  L.  J.  Ch.  6  ;  71J.  P.  535  ;  24  T.  L.  R.  33 ;  affirmed 
by  C.  A.  72  J.  P.  306). 

The  Seats  for  Shop  Assistants  Act,  1899,  provides  that  in  all  rooms 
of  a  shop  or  other  premises  where  goods  are  actually  retailed  to  the 
public  and  where  female  assistants  are  employed  for  the  retailing  of  the 
goods,  the  employer  carrying  on  business  in  such  premises  must  provide 
seats  behind  the  counter,  or  in  such  other  position  as  may  be  suitable 
for  the  purpose,  in  the  proportion  of  not  less  than  one  seat  to  every 
three  female  assistants  employed  in  such  room.  Any  person  failing  to 
comply  with  the  requirement  is  liable  to  a  fine  for  a  first  offence  not 
exceeding  £3,  and  for  a  second  or  subsequent  offence  a  fine  not  less  than 
£1  and  not  exceeding  £5  (ss.  1  and  2). 

Short  Ca.USe. — in  the  Chancery  Division  an  action  which 
involves  no  question  of  difficulty,  or  one  in  which  all  parties  consent  to 
the  order  asked  for,  may  be  set  down  to  be  heard  as  a  short  cause.  An 
action  can  also  be  so  heard,  where  default  of  appearance  is  made,  and 
the  action  is  not  one  which  entitles  the  plaintiff  to  judgment  in  default 
of  appearance  under  Order  13,  rr.  3-9,  or  Order  27,  rr.  2-9.  And  an 
action  may  be  so  heard  where  the  defendant  makes  default  in  delivery 
of  a  defence. 


SHORT  CAUSE  395 

Motions  for  judgment  can  be  marked  "  short "  on  production  of  the 
usual  certificate  of  counsel  that  they  are  proper  to  be  so  heard,  and  will 
be  placed  in  the  paper  on  the  first  short  cause  day  after  the  day  for 
which  notice  is  given  (see  Judges'  Notice,  April  11,  1876).  The  words 
"the  first  short  cause  after  the  day  for  which  notice  is  given,"  mean  the 
first  short  cause  day  available  after  the  notice  is  given.  Therefore,  where 
the  first  short  cause  day  fell  on  the  day  for  which  notice  of  motion  was 
given,  and  judgment  in  default  of  pleading  was  obtained  on  that  day, 
it  was  held  that  there  had  been  no  irregularity  (Crreen  v.  Moore,  1891, 
39W.  R.  421). 

It  is  advisable  that  notices  of  motion  for  judgment  should,  if  it  is 
intended  to  mark  them  short,  contain  a  statement  to  that  effect,  and 
also  a  statement  that  no  further  notice  will  be  given  of  their  having 
been  so  marked.  Such  statement  will  dispense  with  the  necessity  of 
giving  defendants  further  notice  that  motions  for  judgment  have  been 
marked  short  (Judges'  Notice,  April  11,  1876). 

In  the  case  of  a  motion  for  judgment  in  default  of  appearance,  an 
office  copy  affidavit  of  service,  and  of  the  statement  of  claim  filed  in 
default  of  appearance,  and  also  of  the  notice  of  motion  filed  at  least  ten 
clear  days  after  the  filing  of  the  statement  of  claim,  must  be  produced 
at  the  office  of  the  Chancery  Registrars.  Where  there  has  been  default 
of  defence  two  copies  of  the  writ,  and  of  the  statement  of  claim,  and  of 
the  notice  of  motion  must  be  left. 

Upon  the  production  of  these  papers  and  of  the  certificate  of  counsel 
to  the  cause-clerk,  the  action  will  be  marked  as  "  short "  in  the  cause- 
book. 

Any  cause  intended  to  be  heard  as  a  short  cause  must  be  so  marked 
in  the  cause-book  at  least  one  clear  day  before  the  same  can  be  put  in 
the  paper  to  be  so  heard,  and  the  necessary  papers,  including  two  copies 
of  the  minutes  of  the  proposed  judgment  or  order  must  be  left  with  the 
judge's  clerk  one  clear  day  before  the  cause  is  to  be  put  in  the  paper. 
Unless  the  papers  are  so  left  the  cause  will  be  struck  out  {Practice  Note, 
[1901]  W.  N.  78 ;  Chapman  v.  Brooke,  1902, 46  Sol.  J.  215).  If  no  minutes 
are  left  it  may  be  considered  sufficient  if  the  notice  of  motion  shews  the 
exact  terms  of  the  order  sought  {De  Jongh  v.  Newman,  1887, 56  L.  T.  180; 
Chapman  v.  Brooke,  1902,  46  Sol.  J.  215). 

Even  where  the  common  form  judgment  in  a  debenture-holder's 
action  is  asked  for,  the  minutes  must  be  left  {In  re  Automatic  Machines, 
Ltd.,  [1902]  W.  N.  236). 

Where,  under  a  summons  for  directions,  an  order  is  made  that  the 
action  be  set  down  for  trial,  without  pleadings,  as  a  short  cause,  such 
order  ought  also  to  give  leave  to  serve  notice  of  trial,  and  in  a  case 
within  Order  16,  r.  21,  should  further  direct  that  evidence  should  be 
taken  by  affidavit.  Unless  the  order  otherwise  directs,  the  notice  of 
trial  must  be  a  ten  days'  notice.  The  alternative  procedure  may  be 
adopted  of  directing  the  action  to  be  set  down  on  motion  for  judgment, 
without  pleadings — evidence  to  be  taken  by  affidavit,  where  necessary ; 
in  which  case  two  days'  notice  of  motion  is  sufficient  {In  re  Pringle  <&  Co., 
Ltd.,  Povmall  v.  Pringle  &  Co.,  Ltd.,  1904,  89  L.  T.  743). 

In  the  case  of  In  re  Bupont,  Ltd.,  [1906]  W.  N.  14,  it  was  held  that 
in  debenture-holders'  actions  there  should  be  a  statement  of  claim,  but 
see  contra.  In  re  Pringle  &  Co.,  Ltd.,  supra  ;  and  In  re  Cadogan  and  Hans 
Place,  No.  2,  Ltd.,  Graham  v.  Cadogan  and  Hans  Place,  No.  2,  Ltd., 
[1906]  W.  K  112 


396  SHOET  ENTEY 

An  action  for  rectification  of  a  settlement  will  not  be  heard  as  a 
short  cause  (Clennell  v.  Glennell,  1884,  W.  N.  14). 

[See  Annual  Practice;  Daniell's  Chancery  Practice,  7th  ed.,  1901, 
p.  583;  Seton's  Judgments  and  Orders,  6th  ed.,  1901,  p.  182.] 

Short  Entry. — See  Deposit. 

Short ha.ncl  Notes. — The  cases  as  to  the  notes  of  a  short- 
hand writer,  which  are  a  fruitful  source  of  expense  in  litigation 
{Flockton  V.  Peake,  1864,  4  New  Eep.  456),  are  numerous,  and  appear 
to  have  established  the  following  rules : — 

The  costs  of  employing  a  shorthand  writer  to  take  notes  of  the 
evidence  on  the  trial,  or  of  the  transcript  and  copies  of  such  notes, 
will  not  be  allowed  on  a  taxation  as  between  party  and  party  unless 
the  judge  at  the  trial  gives  a  special  direction  to  that  effect  {Kirkwood 
V.  Webster,  1878,  9  Ch.  D.  239 ;  Ashivorth  v.  Outram,  1878,  9  Ch.  D.  483 ; 
Wells  v.  Mitcham-  Gas  Co.,  1878,  4  Ex.  D.  1).  See  also  Smith  v.  Earl  of 
Effingham,  1847,  10  Beav.  378;  50  E.  E.  627;  Croomes  v.  Gore,  1856, 
1  H.  &  N.  14;  Duke  of  Beaufort  v.  Earl  of  Ashhurnliam,  1863,  13 
C.  B.  K  S.  598  ;  Mostyn  v.  Lancaster,  1882,  51  L.  J.  Ch.  696  ;  PUling 
v.  Joint-Stock  Institute,  Ltd.,  1895,  73  L.  T.  570).  Application  for  their 
allowance  should  be  made  at  the  hearing  {Hill  v.  Metropolitan  Asylums 
District  Board,  1880,  28  W.  E.  664;  The  Turret  Court,  1901,  84  L.  T. 
331),  or  at  any  rate  before  the  order  is  drawn  up  {Earl  de  la  Warr 
v.  Miles,  1881,  19  Ch.  D.  80).  The  application,  however,  will  not  be 
acceded  to,  except  under  special  circumstances,  though  it  will  be  granted 
where  the  notes  were  really  essential  {Clarke  v.  Malpas,  1862, 1  New  Eep. 
221 ;  Malin  v.  Price,  1845, 1  Ph.  Ch.  590  ;  41  E.  E.  757 ;  Lee  Conservancy 
Board  v.  Button,  1879, 12  Ch.  D.  383 ;  Watson  v.  Great  Western  Ely.  Co., 
1880,  6  Q.  B.  D.  163  ;  Ex  'parte  Harris ;  In  re  Ward,  1882,  30  W.  E.  560). 

On  the  hearing  of  an  appeal,  shorthand  notes  of  the  evidence  given 
in  the  Court  below  may  be  read  by  either  party  as  his  impression  of 
what  took  place  there,  the  Court  assuming  that  the  judge's  notes 
rightly  represent  the  whole  effect  {In  re  Gee,  Laming  v.  Gee,  1880, 
28  W.  E.  217);  or  they  may  be  made  to  supplement  the  judge's  notes 
{Orr-Ewing  &  Co.  v.  Johnston  &  Co.,  1880,  13  Ch.  D.  p.  450) ;  though, 
as  a  rule,  the  judge's  notes,  supplemented  by  the  notes  of  counsel,  are 
a  sufficient  record  {Earl  de  la  Warr  v.  Miles,  1881,  19  Ch.  D.  80).  See 
Judge's  Notes. 

The  Court  of  Appeal  can  allow  the  costs  of  shorthand  notes  properly 
used  on  the  hearing  of  an  appeal,  whether  made  for  the  purposes  of  the 
appeal  or  not  {Hill  v.  Metropolitan  Asylums  District  Board,  1880,  28 
W.  E.  664;  Smith  v.  Chadwick,  1882,  20  Ch.  D.  p.  81).  But  circum- 
stances of  an  exceptional  character  must  exist  to  induce  the  Court  to 
allow  the  costs  of  shorthand  notes  of  the  evidence  {Bigsby  v.  Dickinson, 
1876,  4  Ch.  D.  p.  32;  In  re  Duchess  of  Westminster  Silver  Lead  Ore  Co., 
1878,  10  Ch.  D.  307 ;  Bewley  v.  Atkinson,  1879,  13  Ch.  D.  p.  300 ;  Kelly 
V.  Byles,  1880,  13  Ch.  D.  682 ;  Vernon  v.  Vestry  of  St.  James  s,  West- 
minster, 1880,  16  Ch.  D.  p.  473;  Ex  parte  Webster,  In  re  Morris,  1882, 
22  Ch.  D.  p.  141 ;  Glasier  v.  Bolls,  1889,  38  W.  E.  113 ;  Pilling  v.  Joint- 
Stock  Institute,  1895,  73  L.  T.  570 ;  Goldberg  &  Son,  Ltd.  v.  Mayor  of 
Liverpool,  1900,  82  L.  T.  362).  In  a  patent  action,  three  copies  of  the 
shorthand  transcript  of  the  evidence  were  allowed  {Castner  Kellner 
Alkali  Co.  v.  Commercial  Development  Corporation,  [1899]  1  Ch.  803). 


SHOKT  TITLES  397 

Under  the  modern  practice,  costs  of  shorthand  notes  of  the  judgment 
below  are  included  in  the  costs  of  an  appeal,  and  that  without  any  special 
direction  for  the  purpose  {Humphery  v.  Sumner,  1886,  55  L.  T.  649 ;  In 
re  Medland,  Eland  v.  Medland,  1889,  41  Ch.  D.  476  ;  In  re  Morgan,  Owen 
V.  Morgan,  1887,  35  Ch.  D.  492 ;  In  re  Be  Falhe,  Ward  v.  Taylor,  [1901] 
1  Ch.  523). 

In  the  absence  of  special  circumstances,  shorthand  notes  of  the 
summing  up  are  allowed  by  the  Court  of  Appeal  {Pilling  v.  Joirvt-Stock 
Institute,  1895,  73  L.  T.  570). 

On  a  taxation  between  a  solicitor  and  his  client  the  costs  of  short- 
hand notes  of  the  proceedings  in  an  action  will  not  be  allowed  unless 
the  solicitor  has  informed  the  client  that  the  expense  may  probably  not 
be  allowed  on  taxation  between  party  and  party  (In  re  Blyth  and 
Fanshawe,  Fx  parte  Wells,  1882,  10  Q.  B.  D.  207).  There  is  a  discretion 
under  special  circumstances  (In  re  Nation,  Nation  v.  Hamilton,  1887, 
57  L.  T.  648 ;  In  re  Be  Nicols,  Be  Nicols  v.  Curlier,  [1906]  W.  N.  192). 

Where,  in  a  patent  action,  it  was  agreed  in  open  Court  that  a  short- 
hand writer's  note  of  the  evidence  to  be  taken  on  behalf  of  the  parties 
should  be  used  as  a  record  of  the  evidence  for  the  purposes  of  the  trial, 
it  was  held  that  the  solicitor  of  one  of  the  parties  was  entitled  to  charge 
his  client  with  money  disbursed  as  his  share  of  the  costs  of  taking  the 
shorthand  note  {Osmund  v.  Mutual  Cycle  and  Manufacturing  Supply 
Co.,  Ltd.,  [1899]  2  Q.  B.  488).  A  solicitor  who  has  employed  his  clerk 
to  take  shorthand  notes  cannot  charge  his  client  with  the  fees  payable 
to  a  professional  shorthand  writer  (in  re  Norman,  1886,  16  Q.  B.  D. 
673). 

Neither  a  judge,  nor  a  Master,  nor  a  Taxing  Master  can  order  a 
shorthand  note  of  evidence  to  be  taken.  Where,  however,  a  Taxing 
Master  suggested  the  employment  of  a  shorthand  writer  to  take  down 
the  evidence  of  witnesses  before  him,  and  neither  party  objected,  his 
allowance  to  the  successful  party  of  half  the  costs  thus  incurred  was 
upheld  {In  re  Hilleary  and  Taylor,  1887,  36  Ch.  D.  262). 

It  is  the  practice  in  Admiralty  cases  to  have  the  evidence  of 
witnesses  examined  before  one  of  the  examiners  of  the  Court  taken 
down  by  a  sworn  shorthand  writer.  Where  an  error  was  discovered 
in  the  transcript  after  it  had  been  filed  in  the  Admiralty  Eegistry, 
it  was  ordered  to  be  taken  off  the  file  and  returned  to  the  examiner 
for  amendment,  the  costs  so  incurred  being  treated  as  costs  in  the  cause 
{The  Knutsford,  [1891]  P.  219). 

As  to  ordering  production  of  shorthand  notes,  see  Nicholl  v.  Jones, 
1865,  2  Hem.  &  M.  588;  71  E.  K.  592;  In  re  Brown,  Tyas  v.  Brown, 
1880,  28  W.  R.  575.  Shorthand  notes  taken  for  the  purpose  of  the  case 
of  a  party  in  another  action  were  held  to  be  privileged  {Nordon  v.  Befries, 
1882,  8  Q.  B.  D.  508). 

[Authorities. — The  Annual  Practice ;  Chitty's  Archbold's  Practice, 
13th  ed.,  1885,  pp.  712,  986  ;  Daniell's  Chancery  Practice,  7th  ed.,  1901, 
pp.  1019, 1072 ;  Morgan's  Chancery  Acts  and  Orders,  6th  ed.,  1885,  p.  549 ; 
Morgan  and  Wurtzburg  on  Costs,  1882,  pp.  497-499 ;  Seton's  Judgments 
and  Orders,  6th  ed.,  1901,  pp.  306,  850,  869,  870.] 

Short  Notice. — See  Motion;  Notice  of  Trial. 

Short  Titles.— The  Short  Titles  Act,  1896,  59  &  60  Vict.  c.  14, 
gives  a  short  title  to  a  considerable  number  of  Acts,  and  provides  that, 


398  SHROUD-STEALING 

without  prejudice  to  any  other  mode  of  citation,  they  may  be  cited  by 
such  short  title  (see  s.  1).  Notwithstanding  the  repeal  of  an  enactment 
giving  a  short  title  to  an  Act,  the  Act  may  continue  to  be  cited  by 
that  short  title  (see  s.  3).  It  is  now  the  practice  to  give  a  short  title 
to  every  Public  General  Act.  But  there  are  still  many  Acts  which  have 
not  got  a  short  title. 

Every  Act  should  have  a  short  title,  ending  with  the  date  of  the 
year  in  which  it  is  passed.  In  the  absence  of  a  short  title,  an  Act  had 
to  be  quoted  by  its  full  title,  which  is  a  long  and  cumbersome  method. 
Lord  Brougham's  Act,  13  &  14  Vict.  c.  21,  enabled  reference  to  be  made 
to  a  particular  statute  without  mentioning  its  title;  but  it  is  very 
inexpedient  to  do  so,  as  the  mere  insertion  of  a  particular  chapter  fails 
to  convey  to  the  mind  of  the  reader  any  idea  of  the  Act  referred  to, 
and  mistakes  often  arise  from  a  misprint  of  the  number  of  a  chapter 
(see  Thring  on  Practical  Legislation). 

In  the  case  of  the  Justices  of  Middlesex  v.  R.,  1884,  9  App.  Gas.,  at 
p.  772,  it  was  stated  that  the  mere  fact  that  the  Act  of  Parliament 
expressly  referred  to  as  that  by  which  the  grant  of  a  pension  was  to  be 
regulated,  was  called  "  The  Superannuation  Act,  1859,"  and  was  referred 
to  by  that  title,  showed  that  the  legislature  thought  that  all  the 
cases  of  pensions  provided  for  by  the  Act  came  within  the  sense  of 
the  word  "  superannuation "  as  conveniently  and  popularly  used,  and 
that  the  short  title  was  a  good  general  description  of  all  that  was 
done  by  the  Act. 

The  Interpretation  Act,  1889,  c.  63,  s.  35,  provides  that  "  In  any 
Act,  instrument,  or  document,  an  Act  may  be  cited  by  reference  to 
the  short  title,  if  any,  of  the  Act,  either  with  or  without  a  reference 
to  the  chapter." 

[Authorities. — Hardcastle  on' Statutes,  4th  edit,  by  Craies ;  Strickland, 
Alphabetical  Table  of  Public  General  Acts  in  force  relating  to  England, 
1897.] 

Shroud -stealing'. — Though  a  corpse  cannot  be  stolen,  the 
shroud  in  which  it  is  wrapped  is  the  subject  of  larceny  {B.  v.  Haynes, 
1616,  12  Co.  Rep.  113);  and  the  property  therein  is  laid  in  the  executor 
or  other  person  who  provided  it.     See  Corpse  ;  Larceny. 

Sia.m> — Area. — The  kingdom  of  Siam,  occupying  the  north-west 
of  the  Malay  Peninsula,  is  bounded  by  Burma  (see  British  India)  on 
the  north  and  west,  and  French  Indo-China  (see  France)  on  the  east. 
The  total  area  of  the  kingdom  is  about  220,000  square  miles,  or  rather 
larger  than  Germany  (see  German  Empire),  of  which  the  Siamese  Malay 
States  covers  60,000  square  miles. 

History. — Early  in  the  17th  century  English  traders  visited  Siam, 
but  it  was  only  in  1855  that  a  treaty  of  friendship  was  concluded 
between  that  country  and  Great  Britain  which  provided  for  extra- 
territorial consular  jurisdiction.  Similar  treaties  soon  followed  with 
France,  Germany,  and  the  United  States,  Russia,  and  other  Powers.  In 
1891  the  boundary  between  Burma  and  North- West  Siam  was  delimited. 
War  broke  out  between  France  and  Siam  over  frontier  disputes  in  1893, 
and  Siam  was  compelled  to  cede  the  territory  lying  to  the  east  of  the 
Mekong,  including  the  province  of  Luang  Prabang,  in  accordance  with 
the  terms  of  the  Treaty  of  October  3, 1893.  The  Franco-Siamese  frontier 
was  altered  by  the  Treaty  of  February  13,  1904,  so  that  a  territory 


SIAM  399 

covering  8000  square  miles  and  including  the  provinces  of  Maluprey 
and  Barsak  was  transferred  to  France,  and  Siam  abandoned  all  claim 
to  the  Luang  Prabang  territory.  By  the  Anglo-French  Convention  of 
1904  the  territories  to  the  west  of  the  Menam  and  Grulf  of  Siam  were 
recognised  as  being  in  the  British  sphere  of  influence,  and  those  to  the 
east  in  the  French  sphere.  By  the  Treaty  of  March  23,  1907  (Cd.  3578), 
between  France  and  Siam  the  provinces  of  Battambang,  Siem  Reap,  and 
Sisophon,  covering  7800  square  miles,  were  ceded  to  France,  and  four 
ports  on  the  Mekong  are  to  be  held  by  her  on  perpetual  lease,  the  port 
of  Krat  and  the  region  of  Dansai  being  restored  to  Siam,  and  French 
extra-territoriality,  so  far  as  concerns  Asiatics,  abolished. 

Negotiations  are  now  (March  1908)  pending,  under  which  Great 
Britain  will  similarly  cede  her  rights  over  Asiatics,  and  in  return 
have  ceded  to  her  the  two  States  of  Kelantan  and  Tringano  which 
adjoin  the  Malay  Federated  States  {q.v.).  The  States  thus  to  be  ceded 
have  an  area  of  about  9000  square  miles,  and  are  within  the  British 
sphere  of  influence  under  the  above  treaty. 

Constitution. — The  executive  authority  is  in  the  King,  advised  by  the 
Senabodi  or  Cabinet,  consisting  of  the  heads  of  the  various  departments 
of  Government.  By  the  Royal  Decree  of  January  10, 1895,  a  Legislative 
Council  was  established  consisting  of  the  members  of  the  Cabinet  and 
other  members,  not  less  than  12,  appointed  by  the  King.  The  functions 
of  the  Legislative  Council  was  to  revise,  amend  and  complete  the  legis- 
lation of  the  kingdom.  The  Legislative  Council  meets  at  least  once  a 
week,  and  is  empowered  to  promulgate  laws  without  the  Royal  assent 
in  the  event  of  any  disability  of  the  Crown. 

For  administrative  purposes  Siam  is  divided  into  18  provincial 
circles,  each  under  a  High  Commissioner  appointed  by  the  King,  and 
assisted  by  subordinate  governors.  The  Minister  of  the  Interior  is 
responsible  for  the  administration  of  the  country.  There  is  a  British 
Financial  Adviser.  The  Siamese  Malay  States  are  administered  by 
the  Rajahs  under  the  control  of  commissioners  appointed  by  the  King. 
The  State  of  Kelantan  is  governed  by  the  Rajah,  who  is  assisted 
by  an  English  Adviser  and  Assistant  Adviser.  The  State  of  Kidah 
is  also  governed  by  a  Rajah,  who  is  assisted  by  an  English  Financial 
Adviser  appointed  by  the  Government  of  Siam.  The  British  Hong 
Kong  and  Shanghai  Bank  and  the  Chartered  Bank  of  India  issue 
bank  notes,  such  issue  being  in  no  way  regulated  by  the  Siamese 
Government. 

Laws  and  Courts  of  Law.  —  With  the  assistance  of  the  British 
adviser  to  the  Ministry  of  Justice  the  Legal  Code  has  been  to  a  great 
extent  revised,  and  a  considerable  check  has  been  imposed  on  thieving 
in  Bangkok  by  the  Pawnshops  Act,  1901.  Advance  has  also  been  made 
in  the  administration  of  justice  in  the  native  Courts,  many  of  the  pro- 
vincial Courts  having  been  reorganised.  The  International  Court  which 
tries  suits  of  foreigners  against  natives  has  also  been  much  improved. 

Growth  of  Consular  Jurisdiction. — By  Treaty  of  1855  consular  juris- 
diction was  first  established  in  Siam,  and  regulated  by  the  earliest  Order 
in  Council  on  July  28,  1856  (London  Gazette,  August  22,  1856,  p.  2863, 
specially  confirmed  by  20  &  21  Vict.  c.  75,  and  33  &  34  Vict.  c.  75). 
Since  then  there  have  been  numerous  amending  Orders  in  Council 
which  were  consolidated  in  1889  (St.  R.  &  O.,  Rev.,  1st  ed.,  vol.  iii., 
p.  818),  again  in  1903  (St.  R.  &  0.,  Rev.  1904,  vol.  v.  p.  691),  and  lastly 
in  1906  (see  below).    Under  the  1856  Order  appeals  lay  to  the  Supreme 


400  SICKNESS 

Court  of  the  Straits  Settlements  from  the  Consul-General's  Court,  which 
in  1903  became  His  Britannic  Majesty's  Court,  with  appeals  therefrom 
direct  to  His  Majesty  in  Council. 

Existing  Corisular  Court  Jurisdiction. — The  Siam  Order  in  Council 
1906  (St.  R  &  0.,  1906,  p.  227),  consolidated  the  whole  of  the  previous 
orders.  His  Britannic  Majesty's  Court  sits  at  Bangkok,  and  is  consti- 
tuted by  a  judge,  who  must  be  a  member  of  the  Bar  of  England, 
Scotland,  or  Ireland ;  its  constitution,  which  is  that  of  a  fully  organised 
Consular  Court,  and  that  of  the  district  Courts  is  dealt  with  in  the 
article  Eoreign  Jurisdiction.  An  appeal  lies  from  His  Britannic 
Majesty's  Court  direct  to  His  Majesty  in  Council  (ibid.,  pp.  253,  261, 
262).     There  is  a  trial  by  jury  in  Siam,  and  assessors  are  provided  for. 

Articles  154  to  157  establish  (in  accordance  with  a  Treaty  of  Septem- 
ber 3,  1883,  therein  recited)  an  International  Court  at  Chiengmai,  with 
civil  and  criminal  jurisdiction  for  certain  provinces,  with  Siamese  judges 
administering  Siamese  law,  from  which  appeals  lie  to  Bangkok ;  British 
consular  jurisdiction  is  suspended  in  favour  of  this  Court. 

King's  Regulations. — His  Majesty's  Minister  has  power  to  legislate 
for  the  government  of  British  subjects  in  Siam  on  the  subjects  specified 
in  the  order  and  for  enforcing  treaty  stipulations  (Arts.  135-138). 

Registration  of  British  Subjects.  —  British  subjects  and  protected 
persons  (Art.  3)  must  be  registered  on  pain  of  fine  and  loss  of  privilege. 
Special  provisions  are  made  as  to  persons  of  Asiatic  descent,  natives  of 
Upper  Burma  and  the  British  Shan  States  (Arts.  139-153). 

Customary  Powers  of  Consular  Officers.  —  These,  which,  as  in  other 
countries  where  Great  Britain  has  exterritorial  jurisdiction,  are  un- 
affected by  the  Foreign  Jurisdiction  Orders,  are  dealt  with  in  the  article 
Consul  (q.v.).  As  stated  in  the  article  Consular  Eees  (q.v.)  consuls  are 
empowered  to  take  certain  fees,  and  these  are  regulated  by  the  Consular 
Fees  (General)  Order  in  Council  1906  (St.  R  &  0.,  1906,  pp.  76-87). 

Application  of  Imperial  Acts. — The  British  regulations  of  1896  for 
preventing  collisions  at  sea  apply  to  Siamese  ships,  whether  within 
British  jurisdiction  or  not  (St.  R  &  0.,  Kev.  1904,  vol.  viii.,  "Merchant 
Shipping,"  p.  285),  and  provision  was  made  by  Order  in  Council  of 
November  10,  1866  (ibid.,  p.  88),  for  the  apprehension  and  carrying  back 
to  their  ships  of  seamen  deserting  from  Siamese  ships  in  any  part  of 
His  Majesty's  dominions. 

[See  the  Statesman's  Year-Book  ;  The  Encyclopedia  Britannica ; 
Tarring,  British  Consular  Jurisdiction  in  the  East.'] 

Sickness  is  sometimes  a  valid  excuse  for  the  non-performance 
of  a  legal  obligation,  or  as  it  is  put  in  Leake  on  Contracts,  1906  ed.,  at 
p.  492,  "  Contracts  for  personal  services  are  generally  taken  as  subject 
to  the  implied  condition  of  the  parties  continuing  in  sufficient  health 
to  perform  and  receive  the  service  respectively."  Such  are  the  cases  of 
a  musical  performer  too  ill  to  appear  (Robinson  v.  Davison,  1871,  L.  K.  6 
Ex.  569) ;  of  an  apprentice  incapable  through  sickness  of  carrying  on 
his  work  (Boast  v.  Firth,  1868,  L.  E.  4  C.  R  1);  and  of  a  child  removed 
from  school  because  too  ill  to  work  (Simeon  v.  Watson,  1877,  46 
L.  J.  C.  R  679).  But  bodily  infirmity,  which  rendered  it  dangerous  to 
the  defendant's  life  to  marry,  has  been  held  no  defence  to  an  action  for 
breach  of  promise  to  marry  (Hall  v.  Wright,  1859,  El.  B.  &  E.  746,  765 ; 
Baher  v.  Cartwright,  1861,  10  C.  B.  N.  S.  124).  The  ordinary  covenant 
for  further  assurance  is  not  broken  by  a  refusal  occasioned  by  the 


SICKNESS  401 

severe  illness  of  the  party  whose  further  assurance  is  required  (Dart, 
887).  Where  an  executor  was  so  ill  that  it  was  impossible  to  serve 
him  with  a  citation  to  accept  or  refuse  probate,  the  Court  made  a  grant 
of  administration  to  a  residuary  legatee  for  the  use  and  benefit  of  the 
executor  until  his  recovery  {In  the  Goods  of  Ponsoinhy,  [1895]  P.  287). 

If  a  material  witness  in  an  action  is  taken  suddenly  ill,  and  unable 
to  attend,  the  trial  may  be  postponed  (Ansley  v.  Birch,  1813,  3  Camp. 
333 ;  HarHsoii  v.  Blades,  ibid.  458).  Where  the  disabling  illness  or 
infirmity  is  such  as  to  preclude  the  hope  of  his  attending  the  trial,  the 
Court  may  allow  his  affidavit  to  be  read  (cp.  Duke  of  Beaufort  v. 
Crawshay,  1866,  L.  R  1  C.  P.  699),  or  may  order  his  deposition  to  be 
taken  before  a  commissioner  or  examiner  (K.  S.  C,  1883,  Order  37,  rr.  1, 
5,  18 ;  Warner  v.  Mosses,  1880,  16  Ch.  D.  100 ;  Bidder  v.  Bridges,  1884, 
26  Ch.  D.  1 ;  Taylor  on  Evidence,  s.  472 ;  see  also  Commission,  Evidence 
ON,  Vol.  III.) ;  and  where  a  person  summoned  for  examination  under 
sec.  27  of  the  Bankruptcy  Act,  1883,  46  &  47  Vict.  c.  52,  was  unable 
through  illness  to  attend,  it  was  held  that  the  Court  had  power  under 
rule  QQ  of  Bankruptcy  Kules,  1886,  to  order  the  examination  to  be 
held  before  an  officer  of  the  Court  at  the  witness's  own  residence 
{In  re  Bradbrook,  1889,  23  Q.  B.  D.  226). 

If  a  witness  becomes  incapable  of  being  further  examined  at  any 
stage  of  his  examination,  the  evidence  given  before  he  became  incapable 
is  admissible  {B.  v.  Boolin,  1832,  1  Jebb  C.  C.  (Ir.)  123 ;  Davies  v.  Ottij, 
1865,  35  Beav.,  at  p.  214;  55  E.  R  877;  34  L.  J.  Ch.  252.  But  see 
Dunne  v.  English,  1874,  L.  E.  18  Eq.  524,  and  Stephen  on  Evidence^ 
Art.  126). 

By  sec.  17  of  11  &  12  Vict.  c.  42,  where  a  witness  for  the  prosecu- 
tion is  "  so  ill  as  not  to  be  able  to  travel,"  his  or  her  deposition,  taken 
in  the  presence  of  the  prisoner,  and  subject  to  his  cross-examination, 
may,  on  proof  of  such  illness,  be  put  in  at  the  discretion  of  the  judge; 
and,  by  sec.  3  of  30  &  31  Vict.  c.  38,  the  same  power  is  conferred  as 
regards  witnesses  for  the  prisoner.  These  provisions,  however,  only 
apply  to  evidence  taken  upon  oath  or  affirmation  {R.  v.  Pnintey,  1887» 
16  Cox  C.  C.  344),  except  in  cases  under  the  Prevention  of  Cruelty  to 
Children  Act,  1904,  4  Edw.  vii.  c.  15,  s.  15  (1),  as  to  the  evidence  of 
young  children.  The  words  "  so  ill,"  etc.,  do  not  mean  that  the  witness's 
coming  to  give  evidence  will  actually  endanger  his  life,  but  that  he  is 
not  reasonably  fit  to  travel  {B.  v.  Biley,  1851,  3  Car.  &  Kir.  116 ;  B.  v. 
Cockhurn,  1857,  Dears.  &  B.  C.  C.  203 ;  R.  v.  Wicker,  1854, 18  Jur.  252). 
Pregnancy  {R.  v.  Welliiigs,  1878,  3  Q.  B.  D.  426),  or  illness  arising  from 
a  recent  confinement  {R.  v.  Harvey,  1850,  4  Cox  C.  C.  441 ;  R.  v. 
Stephenson,  1862,  37  L.  J.  M.  C.  147),  may  be  illness  within  the  statute 
(see  the  cases  both  ways  in  Archbold's  Cr.  PL,  1905  ed.,  p.  370 ;  and  R. 
V.  Butcher,  1900,  64  J.  P.  808).  Unless  there  is  actual  illness,  old  age, 
nervousness,  and  inability  to  stand  cross-examination  are  not  enough 
{B.  V.  Parrel,  1874,  L.  K.  2  C.  C.  R.  116 ;  R.  v.  Thompson,  1876,  13  Cox 
C.  C.  181 ;  Archbold,  ibid.  pp.  369  et  seq.). 

Where,  on  a  trial  for  felony,  in  which  case  the  presence  of  the 
prisoner  is  essential,  a  prisoner  was  suddenly  taken  so  ill  as  to  be 
incapable  of  remaining  at  the  Bar,  the  jury  were  discharged,  and  the 
prisoner  on  his  recovery  was  tried  before  a  fresh  jury  {R.  v.  Stevenson, 
1791,  2  Leach,  546) ;  but  in  a  case  of  misdemeanor  under  similar 
circumstances,  the  prisoner,  who  was  defended  by  counsel  and  had 
pleaded,  was  allowed  to  absent  himself,  and  the  case  proceeded  during 
VOL.  XIII.  26 


/ 


402  SICKNESS 

his  absence  (B.  v.  Orton,  alias  Castro,  1873,  Archbold,  p.  186;  but  see 
B.  V.  Streek,  1826,  2  Car.  &  P.  413). 

If  a  juryman  be  taken  so  ill  as  not  to  be  able  to  proceed  with  the 
trial,  the  jury  should  be  discharged  and  a  fresh  jury  sworn  {B.  v. 
Scalbert,  1794,  2  Leach,  620);  or,  if  necessary,  the  prisoner  should  be 
remanded  to  the  next  assizes  (Archbold,  p.  224). 

Provisions  for  supplying  the  place  of  any  judge  who  is  absent  from 
illness  or  any  other  cause,  are  contained  in  the  Judicature  Acts,  1873, 
s.  51;  1881,  s.  12;  1884,  ss.  5,  6  (cp.  Chapman  v.  Beal  Property  Trust, 
1878,  7  Ch,  D.  732).  On  one  occasion  the  judge,  while  on  circuit,  being 
too  ill  to  sit  in  Court,  charged  the  grand  jury  from  his  bed,  pending  the 
arrival  of  a  commissioner  from  London  to  try  the  prisoners  (Huddle- 
ston,  B.,  at  Lewes  Assizes,  see  the  Times,  August  7,  1890). 

Incurable  blindness  (B.  v.  Bucknell,  1854,  3  El.  &  Bl.  587),  or 
lunacy  {B.  v.  Manchester,  1856,  6  El.  &  Bl.  919),  is,  but  pregnancy  {B.  v. 
Euddersfield,  1857,  7  El.  &  Bl.  794),  where  it  was  held  that  "  sickness  " 
in  the  statute  meant  "disease,"  is  not  sickness  within  sec.  4  of  9  &  10 
Vict.  c.  66  (Poor  Removal  Act,  1846),  It  is  to  be  observed  that  the 
section  only  applies  to  the  sickness  of  the  party  to  be  removed  {B.  v.  ^S'i^. 
Georges,  Middlesex,  1862,  2  B.  &  S.  317),  and  that  it  does  not  say  that 
the  sickness  must  produce  permanent  disability,  but  only  that  the 
justices  must  state  that  they  are  satisfied  that  it  will  {B.  v.  St.  Mary 
and  St.  Andrew,  Whittlesey,  1863,  3  B.  &  S.  432). 

Lunacy  is  also  sickness  within  the  relief  cause  of  a  friendly  society's 
rules  {Burton  v.  JEyden,  1873,  L.  R.  8  Q.  B.  295),  but  where  the  rules  of 
such  a  society  provided  that  a  member  falling  sick,  lame,  or  blind, 
should  be  entitled  to  relief,  it  was  held  that  incapacity  to  work  from 
natural  decay  as  the  result  of  old  age  did  not  entitle  the  member 
{DunUey  v.  Harrison,  1887,  56  L.  T.  660).  A  bequest  for  "  sick,  aged, 
and  impotent  persons  "  has  been  held  to  indicate  that  hospital,  and  not 
educational,  purposes  were  intended  {A.-G.  v.  Northumberland,  1889, 
5  T.  L.  R  237,  719). 

As  to  how  far  drunkenness  may  be  regarded  as  a  sickness  or  disease 
affecting  the  mind  so  as  to  furnish  an  excuse  for  what  would  otherwise 
be  a  crime,  see  Drunkenness,  Vol.  V. 

Anyone  who  knowingly  and  wilfully  exposes  himself  to  another 
person  when  suffering  from  an  infectious  disease,  to  the  danger  of  the 
health  of  any  part  of  the  public,  is  indictable  for  a  common  nuisance 
(see  Stephen's  Digest,  s.  208).  The  duties  and  liabilities  of  heads  of 
families,  medical  practitioners,  and  others,  with  regard  to  the  notifica- 
tions of  infectious  diseases,  and  to  the  disinfection  of  infected  premises, 
etc.,  are  dealt  with  under  Disease,  Vol.  IV.;  Infectious  Diseases, 
Vol.  VII. 

As  to  how  far  and  to  what  extent  damages  are  recoverable  for 
sickness  caused  by,  or  consequent  on  a  breach  of  contract,  see  Hohhs  v. 
London  and  South-  Western  Bly.  Co.,  1875,  L.  R.  10  Q.  B.  Ill ;  MacMahon 
V.  Field,  1881,  7  Q.  B.  D.  591 ;  Damages. 

Under  the  Workmen's  Compensation  Act,  1906,  6  Edw.  vii.  c.  58, 
s.  8,  where  a  certifying  surgeon  certifies  that  a  workman  is  suffering 
from  a  disease  mentioned  in  Sched.  3  of  the  Act,  and  is  thereby  disabled, 
the  workman  is  entitled  to  claim  compensation  under  the  Act.  Such 
diseases  are :  anthrax,  lead,  mercury,  phosphorus  or  arsenic  poisoning, 
and  ankylostomiasis.  A  number  of  other  industrial  diseases  have  since 
been  added  by  the  Home  Secretary,  whose  power  to  make  additions  is 


SIEGE  403 

derived  from  the  Act.     A  list  of  these  will  be  found  in  St.  E.  &  0., 
1907,  p.  444 ;  see  also  Employers'  Liability,  Vol.  V. 

Side. — The  meaning  of  this  word  as  used  in  the  rubric  to  the 
communion  service  was  much  discussed  in  Bidsdale  v.  Clifton,  1887, 
2  P.  D.  276  {per  Lord  Chancellor  Cairns),  p.  341. 

To  constitute  the  offence  of  encroaching  on  "  the  side  or  sides  of  any 
carriageway  or  cartway,"  created  by  sec.  51  of  the  Highway  Act,  1864, 
the  encroachment  must  have  been  committed  upon  the  carriageway  or 
cartway,  or  upon  that  part  at  the  side  which  has  been  dedicated  to  the 
public  (Easton  v.  Bichmond  Highway  Board,  1871,  41  L.  J.  M.  C.  25). 

As  used  in  sec.  3  of  the  Public  Health  (Buildings  in  Streets)  Act, 
1888  (which  prohibits  the  erection  or  bringing  forward  of  any  house 
or  building  in  any  street  beyond  the  front  main  wall  of  the  house  or 
building  "on  either  side  thereof  in  the  same  street,"  unless  with  the 
written  consent  of  the  urban  authority),  the  word  implies  some  degree 
of  proximity ;  "  it  is  doubtful,  to  say  no  more,  whether  a  building  three 
or  four  hundred  yards  distant  from  another  building  can  be  said  to  be 
on  one  side  of  it  "  {per  Fry,  L.J.,  in  Bavensthorpe  Local  Board  v.  Hinch- 
diffe,  1889,  59  L.  J.  M.  C.  19.  See  also  Warren  v.  Mustard,  1891,  61 
L.  J.  M.  C.  18  ;  and  Stroud's  Judicial  Dictionary,  s.v.  "  Side  "). 

Sidesman. — This  term  is  a  corruption  of  synods  men  {testes 
synodales).  The  persons  so  pointed  out  are  also  known  as  questmen. 
Pormerly  the  bishops  were  accustomed  to  summon  certain  creditable 
persons  from  among  the  parishioners  to  give  evidence  as  to  disorders  on 
the  part  of  clergy  and  people.  In  process  of  time,  these  became  standing 
officers,  especially  in  the  larger  cities ;  but,  generally  speaking,  their 
appointment  depended  upon  local  custom.  Canons  89  and  90  of  1603, 
however,  direct  them  to  be  yearly  chosen  in  Easter  week  in  the  same 
manner  as  churchwardens.  On  their  appointment,  they  were  required, 
both  by  papal  constitutions  and  the  general  canon  law,  to  swear  an  oath, 
which  ultimately  took  the  following  form : — 

You  shall  swear  that  you  will  be  assistant  to  the  churchwardens  in  the 
execution  of  their  office,  so  far  as  by  law  you  are  bound.  So  help  you 
Ood! 

<Gibs.  960.)  Now,  however,  by  5  &  6  Will.  iv.  (1835),  c.  62,  s.  9,  a 
declaration  that  he  will  faithfully  and  diligently  perform  the  duties  of 
his  office  is  all  that  is  required  of  a  sidesman  on  his  appointment ;  and 
likewise,  on  quitting  office,  no  sidesman  can  be  compelled  to  take  any 
oath.  The  only  duties  properly  attached  to  the  office  are  to  search  out 
and  inquire  into  offences,  and  to  present  such  offenders  as  are  punishable 
by  the  ecclesiastical  Courts  to  the  ordinary. 
See  Churchwarden. 

Siege. — A  siege  is  the  continuous  investment  by  military  forces 
of  a  town  or  fortress  in  order  to  compel  the  garrison  to  surrender.  All 
the  means  necessary  to  the  successful  issue  of  a  siege  are  justifiable 
by  the  laws  of  war ;  but,  except  in  cases  of  the  most  pressing  necessity, 
artillery  is  directed  only  against  the  fortifications,  and  not  intentionally 
against  particular  buildings,  whether  public  property  or  otherwise. 
The  Brussels  Conference  (1874)  adopted  the  following  resolutions  as 
to  sieges: — 


404  SIEGE 

Fortified  places  are  alone  liable  to  be  besieged.  Towns,  agglomera- 
tions of  houses,  or  villages,  which  are  open  and  undefended,  cannot  be 
attacked  or  bombarded. 

It  is  the  duty  of  the  besieged  to  indicate  buildings  devoted  to  religion, 
arts,  sciences,  and  charity,  hospitals  and  places  where  the  sick  and 
wounded  are  collected,  by  special  visible  signs,  to  be  notified  beforehand 
to  the  besiegers  (in  order  to  protect  such  buildings  from  attack). 

A  town  taken  by  storm  should  not  be  given  up  to  the  victorious 
troops  to  plunder. 

The  Convention  concerning  the  Laws  and  Customs  of  War  on  Land, 
which  was  signed  at  The  Hague  Conference  of  1907,  contains  in  an  Annex 
"Eegulations  respecting  the  laws  and  customs  of  war  on  land,"  the 
following  rules,  which  are  similar  to  those  arrived  at  at  The  Hague 
Conference  of  1899  : — 

Section  II. — Hostilities.     Chapter  I. — Means  of  Injuring  the  Enemy ^ 
Sieges,  and  Bonibardments. 

Article  XXII. — The  right  of  belligerents  to  adopt  means  of  injuring 
the  enemy  is  not  unlimited. 

Article  XXIII. — In  addition  to  the  prohibitions  provided  by  special 
Conventions,  it  is  especially  forbidden — 

(a)  To  employ  poison  or  poisoned  weapons ; 

(&)  To  kill  or  wound  treacherously  individuals  belonging  to  the 
hostile  nation  or  army; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms,  or 
having  no  longer  means  of  defence,  has  surrendered  at  discretion ; 

{d)  To  declare  that  no  quarter  will  be  given ; 

(e)  To  employ  arms,  projectiles,  or  material  calculated  to  cause 
unnecessary  suffering; 

(/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national  flag, 
or  of  the  military  insignia  and  uniform  of  the  enemy,  as  well  as  the 
distinctive  badges  of  the  Geneva  Convention ; 

{g)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruction 
or  seizure  be  imperatively  demanded  by  the  necessities  of  war ; 

Qi)  To  declare  abolished,  suspended,  or  inadmissible  in  a  Court  of 
law  the  rights  and  actions  of  the  nationals  of  the  hostile  party. 

A  belligerent  is  likewise  forbidden  to  compel  the  nationals  of  the 
hostile  party  to  take  part  in  the  operations  of  war  directed  against  their 
own  country,  even  if  they  were  in  the  belligerent's  service  before  the 
commencement  of  the  war. 

Article  XXIV. — Euses  of  war  and  the  employment  of  measures 
necessary  for  obtaining  information  about  the  enemy  and  the  country 
are  considered  permissible. 

Article  XXV. — The  attack  or  bombardment,  by  whatever  means, 
of  towns,  villages,  dwellings,  or  buildings  which  are  undefended  is 
prohibited. 

Article  XX  VI — The  officer  in  command  of  an  attacking  force  must,, 
before  commencing  a  bombardment,  except  in  cases  of  assault,  do  all  in 
his  power  to  warn  the  authorities. 

Article  XXVII. — In  sieges  and  bombardments  all  necessary  steps 
must  be  taken  to  spare,  as  far  as  possible,  buildings  dedicated  to  religion, 
art,  science,  or  charitable  purposes,  historic  monuments,  hospitals,  and 
places  where  the  sick  and  wounded  are  collected,  provided  they  are  not 
being  used  at  the  time  for  military  purposes 


SIEERA  LEONE  .405 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such 
buildings  or  places  by  distinctive  and  visible  signs,  which  shall  be 
notified  to  the  enemy  beforehand. 

Article  XXVIII. — The  pillage  of  a  town  or  place,  even  when  taken 
by  assault,  is  prohibited. 

See  the  articles  Bombakdment  ;  Blockade  ;  Capitulation. 

Si^g'e  Socia.!. — A  phrase  met  with  in  cases  involving  French 
law,  meaning  the  chief  office  of  a  company — the  French  equivalent  of 
registered  office  in  English  law. 

Sierra  Leone. — Area. — The  British  Colony  of  Sierra  Leone 
is  situated  on  the  West  Coast  of  Africa,  between  French  Guinea  (see 
France)  on  the  north  and  the  Republic  of  Liberia  (g'.u)  on  the  south ; 
the  hinterland  forms  the  Sierra  Leone  Protectorate  (^.v.).  The  colony 
proper  has  a  coast-line  of  180  miles,  and  an  area  of  about  4000  square 
miles,  or  as  large  as  the  East  and  West  Ridings  of  Yorkshire  together. 

Early  History. — The  Royal  African  Company  (see  Companies, 
Chartered)  had  a  factory  or  slave  depot  at  Sierra  Leone  from 
1660  until  the  early  part  of  the  18th  century,  when  it  became  the 
property  of  private  traders,  who  were  confirmed  in  their  possession 
and  incorporated  as  the  African  Company  of  Merchants  by  the  Act 
25  Geo.  II.  c.  40,  which  finally  dissolved  the  Royal  African  Company. 
In  1788  territory  extending  from  St.  George's  Bay  up  the  Sierra  Leone 
to  Gambia  (g'.v.)  was  ceded  to  certain  philanthropists  for  the  purpose  of 
forming  a  settlement  of  liberated  slaves.  The  colony  not  proving  a 
success,  in  1791  the  St.  George's  Bay  Association  was,  by  31  Geo.  in. 
c.  55,  incorporated  for  trading  purposes  as  "  The  Sierra  Leone  Company." 
By  a  Charter  of  Justice  of  July  5,  1799  (Sierra  Leone  Ordinances, 
vol.  iii.,  1868,  pp.  144-161),  the  Qolony  of  Sierra  Leone  was  established. 
Nine  years  later,  under  47  Geo.  ill.  sess.  2,  c.  44,  by  charter  of  August 
9,  1808  (rep.  S.  L.  Rev.  Act,  1872,  iUd.,  pp.  162-192),  the  Crown  took 
over  the  colony,  to  which  further  additions  were  made  down  to  1817, 
when  the  colony  assumed  its  present  proportions.  In  1821  all  our  West 
African  possessions  were,  by  charter  of  October  17,  1821  (Sierra  Leone 
Ordinances,  vol.  ii.,  1861,  p.  129),  under  1  »fe  2  Geo.  iv.  c.  28,  on  the  dis- 
solution of  the  African  Company  of  Merchants,  formed  into  a  single 
colony  under  the  name  of  the  West  African  Settlements,  the  seat  of 
Government  being  at  Sierra  Leone.  In  1843  the  Gambia  (g'.v.)  was  con- 
stituted a  separate  settlement  from  Sierra  Leone,  and  the  Gold  Coast 
(g-.v.),  though  nominally  dependent  on  Sierra  Leone,  was  also  given  a 
governor  of  its  own,  and  seven  years  later  was  severed  from  Sierra 
Leone.  By  16  &  17  Vict.  c.  86,  liberated  Africans  in  Sierra  Leone  and 
its  dependencies  were  declared  natural-born  British  subjects  for  all  pur- 
poses. By  charter  of  February  19,  1866,  Sierra  Leone  was  made  the 
seat  of  Government  for  all  the  West  African  settlements  (including 
Lagos),  which  were  thus  again  reunited;  but  in  1874  the  Gold  Coast 
(together  with  Lagos,  now  Southern  Nigeria  {q.v^\  and  in  1888  the 
Gambia,  were  again  erected  into  separate  colonies,  and  Sierra  Leone 
attained  its  present  form  of  a  separate  Government.  By  the  ConventioD 
with  France  (g-.v.)  of  1904  the  Los  Islands  were  ceded  to  that  country. 

Constitution. — The  government  of  the  colony  is  now  regulated  by 
Letters  Patent  of  November  28, 1888  (St.  R.  «&  0.,  Rev.  1904,  vol.  xi., 


406  SIEREA  LEONE  PEOTECTOEATE 

"  Sierra  Leone,"  p.  1),  as  amended  by  Letters  Patent  of  April  17,  1905 
(St.  E.  &  0.,  1905,  p.  1453),  as  to  administration  during  the  absence, 
etc.,  of  the  Governor,  and  as  to  a  deputy-governor.  There  is  a  Governor, 
with  the  usual  powers  of  pardon  and  appointment  of  judges  and  officials 
(see  article  Colony),  and  a  Legislative  and  Executive  Council.  The 
Legislative  Council  is  wholly  nominative,  and  colony  is  therefore 
purely  of  the  "  Crown "  class.  Certain  parts  of  the  colony  have  for 
judicial  and  administrative  purposes  been  included  in  the  protectorate 
(see  below),  as  is  the  case  in  the  Gambia  {q.v.). 

Laws. — The  law  of  the  colony  is  that  of  England  as  on  January  1, 
1880,  but  modified  and  supplemented  by  a  large  number  of  local 
Ordinances.  The  Ordinances  of  each  year  are  published  in  one  volume, 
and  there  is  an  index  covering  the  period  to  December  31,  1899,  and 
arranged  both  chronologically  and  alphabetically,  which  states  the  extent 
of  repeals,  and  two  Ordinances  (Nos.  14  and  32  of  1907)  repeal  a  number 
of  obsolete  enactments.  Native  law  is  administered  in  all  the  Courts, 
so  far  as  not  incompatible  with  statute  or  Ordinance,  and  not  repugnant 
to  natural  justice. 

Courts  of  Law. — The  Supreme  Court  for  Sierra  Leone  was  constituted 
by  the  Charter  of  Justice  of  1800,  and  is  now  regulated  by  the  Supreme 
Court  Ordinance,  No.  14  of  1904,  as  subsequently  amended.  The 
Supreme  Court  is  constituted  by  a  chief  justice,  and  has  original  civil 
and  criminal  jurisdiction,  and  also  civil  appellate  jurisdiction.  Appeals 
lie  to  the  Supreme  Court  of  Sierra  Leone  from  the  Supreme  Court  of 
the  Gambia  (St.  E.  &  0.,  Eev.  1904,  vol.  vL,  "  Gambia,"  p.  5),  and  the 
Courts  of  the  colony  have  jurisdiction  within  the  protectorate  {ibid., 
vol.  v.,  "Foreign  Jurisdiction,"  p.  165).  Under  Order  in  Council  of 
February  26, 1867  {ihid.,  vol.  vi.,  "Judicial  Committee,"  p.  81),  an  appeal 
lies  from  the  Supreme  Court  to  His  Majesty  in  Council  (for  conditions 
of  appeal,  see  Privy  Council).  There  are  also  Magistrates'  Courts  for 
minor  offences,  constituted  by  the  Police  Magistrate  at  Freetown,  and 
the  District  Commissioners  of  the  districts  of  the  colony. 

Application  of  Lmperial  Acts. — The  Imperial  Coinage  Acts  have  been 
put  in  force  in  the  colony  (St.  E.  &  0.,  1904,  vol.  ii.,  "Coin  Colonies," 
p.  114),  but  under  Orders  in  Council  of  June  10,  1843,  June  30,  1852, 
and  November  28,  1874  {ibid.,  vol.  ii.  pp.  13-17),  various  foreign  coins, 
including  gold  of  the  United  States  and  five-franc  pieces  of  the  Latin 
Union,  are  current  in  addition  to  the  Imperial  currency.  Sec.  20  of  the 
Finance  Act,  1894,  has  been  applied  to  Sierra  Leone  by  Order  in  Council 
of  February  8,  1896  {ibid.,  vol.  iv,,  "Death  Duties,"  p.  8).  The  Colonial 
Extradition  Ordinance,  1878,  has  been  incorporated  with  the  Imperial 
Extradition  Acts  {ibid.,  vol.  v.,  "Fugitive  Criminal,"  p.  315),  and  for  the 
purpose  of  inter-colonial  backing  of  extradition  warrants  Sierra  Leone 
has  been  grouped  with  our  other  West  African  colonies  and  protectorates 
{ibid.,  vol.  V.  p.  330).  The  revenues  of  the  colony  have,  by  Treasury 
determination,  been  made  applicable  to  superannuation  allowances  {ibid., 
vol.  ix.,  "  Pension,"  p.  27). 

[See  the  Colonial  Office  List,  1908 ;  Lucas's  Historical  Geography  of 
the  British  Colonies,  vol.  iii. ;  the  Journal  of  Comparative  Legislation, 
vol.  i.  p.  181 ;  also  the  Sierra  Leone  Ordinances.] 

Sierra  Lconc  Protectorate.— ^rm.— The  Sierra  Leone 
Protectorate  lies  between  the  French  Guinea  and  the  French  Soudan 
(see  France),  and  the  Eepublic  of  Liberia  {q.v.),  the  colony  of  Sierra 


SIGNATUEE  407 

Leone  {q.v.)  forming  in  the  main  the  southern  boundary.  The  boundary 
to  the  east  and  north-east  was  fixed  by  the  agreement  between  Great 
Britain  and  France  of  January  21,  1895  (Pari.  Papers,  1895,  Cd.  7600), 
and  to  the  south-east  by  the  Anglo-Liberian  Commission  of  1886.  The 
total  area  of  the  protectorate  is  28,110  square  miles,  or  nearly  as  large 
as  Ireland. 

Earlier  History. — The  protectorate  is  of  more  or  less  recent  growth, 
dating  from  agreements  and  cessions  made  since  1882,  but  it  was  not  till 
August  21,  1896,  that  a  protectorate  was  proclaimed  over  the  Sierra 
Leone  Hinterland. 

Administration. — The  government  of  the  protectorate  is  regulated 
by  Order  in  Council  of  August  24,  1895  (St.  R.  &  0.,  Rev.  1904,  vol.  v.. 
"Foreign  Jurisdiction,"  p.  165),  under  which  the  legislative  powers  are 
in  the  Legislative  Council  of  the  adjoining  colony.  For  administrative 
purposes  the  protectorate  is  divided  into  five  districts,  each  under  a 
Commissioner,  who  is  assisted  by  Assistant-Commissioners.  The  Sierra 
Leone  legislation  as  to  the  protectorate  is  at  present  comprised  in 
Ordinance  No.  33  of  1901,  as  amended  by  Nos.  6  and  19  of  1903,  No.  5 
of  1904,  and  Nos.  3,  26,  and  33  of  1905,  but  the  whole  of  the  Ordinances 
as  to  the  protectorate  are  now  (July  1908)  in  course  of  revision  and 
consolidation.  For  the  purpose  of  the  intercolonial  backing  of  extradition 
warrants  the  whole  of  the  British  colonies  and  protectorates  on  the  west 
coast  have  been  grouped  together  (St.  R.  &  0.,  Rev.  1904,  vol.  v., 
"Fugitive  Criminal,"  p.  330). 

Courts  of  Law. — Under  the  Protectorate  Courts  Jurisdiction  Ordin- 
ance, 1903  (No.  6  of  1903),  as  amended  by  subsequent  protectorate 
Ordinances,  three  Courts  were  established  in  and  for  the  protectorate, 
viz.,  the  Court  of  the  Native  Chiefs,  the  District  Commissioner's  Court, 
and  the  Circuit  Court.  The  Courts  of  the  Native  Chiefs  have  jurisdic- 
tion only  in  cases  where  all  the  parties  are  natives  and  in  less  serious 
offences,  and  decisions  are  based  on  native  laws  and  customs :  appeals 
lie  to  the  District  Commissioner's  Court.  For  each  of  the  five  districts 
there  is  a  District  Commissioner's  Court,  whose  jurisdiction  extends  to 
matters  up  to  £50  and  criminal  causes  not  amounting  to  felony — the 
Court  is  constituted  by  the  District  Commissioners :  appeals  lie  to  the 
Circuit  Court.  The  Circuit  Court  is  presided  over  by  a  judge  of  the 
Supreme  Court  of  the  colony,  and  has  (same  as  to  matrimonial  matters) 
all  the  jurisdiction  of  the  Supreme  Court  of  the  colony.  The  procedure 
is  that  of  the  Supreme  Court,  but  all  cases  are  heard  summarily.  (But 
see  above  as  to  the  pending  revision  of  the  Ordinances.)  Appeals  lie  to 
the  Supreme  Court  of  Sierra  Leone  {q.v.\  The  Sierra  Leone  Offences 
Act,  1861,  24  &  25  Vict.  c.  31,  provided  for  the  punishment  of  offences  in 
territories  adjacent  to  the  colony.  The  power  conferred  by  sec.  17  of 
the  Foreign  Jurisdiction  Act,  1890,  of  varying  the  1861  Act  by  Order 
in  Council,  has  never  been  exercised.  Under  the  Imperial  Act,  34  &  35 
Vict.  c.  8,  the  Supreme  Court  of  Sierra  Leone  {q.v.)  has  jurisdiction  as 
to  crimes  and  offences  committed  within  twenty  miles  of  the  boundary 
of  the  protectorate. 

[^Authorities. — Colonial  Office  List,  1908 ;  Sierra  Leone  Ordinances.] 

Signature. — The  name  of  a  person  written  on  a  document  to 
signify  that  the  writing  accords  with  his  wishes  or  intentions.  This  is 
what  is  ordinarily  meant  by  speaking  of  a  person's  "  signature,"  but  the 
law  does  not  always  insist  upon  the  name  of  the  person  being  written ; 


408  SIGNATUEE 

initials  (q.v.)  or  a  mark  (q.v.)  intended  to  represent  a  person's  name  have 
been  held  to  be  a  sufficient  "  signature "  by  him.  Further,  vmless  a 
statute  makes  a  personal  signature  indispensable,  signature  by  a  duly 
authorised  agent  is  sufficient,  in  accordance  with  the  common  law  maxim, 
Qui  facit  per  cdium  facit  per  se  (B.  v.  Kent  Jiistices,  1873,  L.  R.  8  Q.  B. 
305).  The  signature  of  a  blind  man,  or  a  man  who  cannot  read,  or  for 
some  reason  not  implying  negligence,  forbears  to  read,  is  not  binding 
where  the  effect  of  the  document  is  falsely  represented  as  something 
altogether  different  from  the  document  pretended  to  be  read  to  him. 
This  is  so  not  only  on  the  ground  of  fraud,  but  because  the  mind  of  the 
signer  did  not  accompany  the  signature  {Foster  y.  Mackinnon,  1869,  L.  R. 
4  C.  P.  704,  711).  For  a  case  of  alleged  negligence,  see  Lewis  v.  Clay, 
1897,  67  L.  J.  Q.  B.  224.  Misrepresentation  as  to  the  contents  of  a  deed 
will  not  render  the  signature  of  no  effect  {Howatson  v.  Webb,  [1908] 
1  Ch.  1).  In  this  case  it  was  doubted  by  the  Court  of  Appeal  whether 
the  old  authorities  on  the  plea  of  non  est  factum  extend  beyond  the  cases 
where  the  party  is  blind  or  illiterate.  Where  there  is  a  relationship, 
which  involves  the  existence  of  a  special  influence  between  the  party 
signing  and  the  party  procuring  the  signature,  this  may  invalidate  the 
signature  (Chaplin  y.  Brammall,  [1908J  1  K.  B.  233;  Tumhull  <fe  Co. 
V.  Duval,  [1902]  A.  C.  429).  The  requisite  of  a  signature  varies  in 
regard  to  particular  documents. 

Deeds. — A  deed  requires  to  be  sealed,  but  there  is  still  some  doubt  as 
to  the  necessity  of  it  being  signed  as  well,  though  no  one,  says  Sir  Wm. 
Anson  {Law  of  Contract,  11th  ed.,  64),  "unless  ambitious  of  giving  his 
name  to  a  leading  case,  would  omit  to  sign  a  deed."  In  practice  a  deed 
is  always  signed. 

Wills. — The  Wills  Act,  1837,  s.  9,  requires,  in  order  that  a  will  may 
be  valid,  iider  alia,  that  it  shall  be  signed  "  at  the  foot  or  end  thereof  by 
the  testator,  or  by  some  other  person  in  his  presence  and  by  his  direc- 
tion," and  the  signature  must  further  be  made  or  acknowledged  by  the 
testator  in  the  presence  of  two  or  more  witnesses.  The  later  Act  of 
1852  (Wills  Act  Amendment  Act)  makes  further  provision  with  regard 
to  the  'position  of  the  signature  of  the  testator.  Tracing  a  former  signa- 
ture with  a  dry  pen  is  not  a  sufficient  "  signature  "  to  satisfy  the  require- 
ments of  the  Wills  Act  {In  the  Goods  of  Cunningham,  1860,  29  L.  J.  Prob. 
71) ;  but  affixing  a  mark  is  {Jenkins  v.  Gaisford,  1863,  3  Sw.  &  Tr.  96), 
as  is  also  the  stamping  with  an  engraved  signature  {ibid.),  or  signing  by 
initials  {Hindmarsh  v.  Charlton,  1861,  8  H.  L.  171;  11  E.  R.  388;  In 
the  Goods  of  Blewitt,  1880,  5  P.  D.  116).  The  signature  to  a  will  ought, 
of  course,  to  be  the  testator's  real  name,  but  a  will  has  been  held  to  be 
validly  executed  where  a  testatrix,  whose  name  was  "  Glover,"  signed  her 
name  "  Reeve,"  which  was  the  name  of  her  first  husband  {In  the  Goods  of 
Glover,  1847,  11  Jur.  1022).  Where  a  person  on  being  requested  by  a 
testator  to  sign  his  will  for  him,  signed  it  with  his  own  name  instead  of 
that  of  the  testator,  it  was  held  that  this  was  a  sufficient  compliance 
with  the  Act  {In  the  Goods  of  Clark,  1839,  2  Curt.  329).  The  signature, 
if  not  the  real  one,  must,  bond  fide,  be  intended  to  represent  such,  other- 
wise it  will  be  insufficient  {Pryor  v.  Pryor,  1860,  29  L.  J.  Prob.  114;  In 
the  Goods  of  Leverington,  1886,  11  P.  D.  80).  To  affix  a  seal  qud  seal 
will  not  suffice  as  a  "  signature,"  but  where  a  testator  affixed  a  seal 
stamped  with  his  initials  to  his  will,  and  said,  touching  the  seal — the 
initials  as  well  as  the  wax — "  this  is  my  hand  and  seal,"  it  was  held  that 
this  was  a  sufficient  "signature"  to  comply  with  the  Act  {In  the  Goods 
of  Emerson,  1882,  9  L.  R.  Ir.  443). 


SIGN  MANUAL  409 

Contracts. — See  Fkauds,  Statute  of;  Sale  of  Goods;  Specific 
Pekformance  ;  Limitation,  Vol.  VIL,  at  p.  319. 

.  Election  Papers. — Where  a  voter's  name  is  incorrectly  given  on  the 
roll  of  electors,  the  voter  may  vote  in  the  name  by  which  he  is  there 
mentioned,  and  this  whether  the  voting  is  by  ballot  or  whether  the  voter 
has  actually  to  sign  the  voting  paper  (R.  v.  Thwaites,  1853,  22  L.  J.  Q.  B. 
238).  A  notice  of  objection  to  be  given  under  sec.  17  of  the  Parlia- 
mentary Voters  Kegistration  Act,  1843,  is  sufficiently  signed  if  the 
objector  stamps  it  with  a  facsimile  of  his  signature  (Bennett  v.  Brumfitt, 
1867,  37  L.  J.  C.  P.  25);  such  a  notice,  however,  must  be  signed  or 
stamped  by  the  objector  personally  {Toms  v.  Cuming,  1845,  7  Man.  &  G. 
88 ;  66  E.  R.  686).  The  ordinary  signature  is  sufficient  (Bowden  v.  Besley, 
1888,  21  Q.  B.  D.  309) ;  and  although  it  may  be  illegible  by  itself,  yet 
if  it  can  be  deciphered  by  reference  to  the  register  or  otherwise  it  will 
be  good  (Trotter  v.  Walker,  1862,  32  L.  J.  C.  P.  60).  A  claim  to  vote,  if 
signed  with  the  claimant's  name  by  an  agent's  clerk,  is  sufficient  under 
6  &  7  Vict.  c.  18,  s.  38  (Brown  v.  Tombs,  [1891]  1  Q.  B.  253). 

Legal  Proceedings. — A  judge's  order  may  be  "  signed  "  by  a  stamped 
signature  (Blades  v.  Lavyrence,  1874,  43  L.  J.  Q.  B.  133).  Particulars  in 
a  County  Court  action  are  not  "  signed "  by  the  solicitor  filing  same  if 
his  name  is  merely  lithographed  thereon  (R.  v.  Cowper,  1890,  24  Q.  B.  D. 
60,  533);  but  signature  in  the  name  of  the  solicitor  by  his  clerk  is 
sufficient  (France  v.  Duttm,  [1891]  2  Q.  B.  208).  See  also  Stroud, 
Jnd.  Diet. 

See  further,  Bill  of  Costs;  Bills  of  Exchange;  Promissory 
Note. 

Signed,  Sealed,  and  Delivered.— See  Will,  Jvdicmi 

Olossary. 

Signet. — See  Privy  Seal  and  Signet. 

Significavit. — The  name  given  to  the  document  sent  by  the 
judge  of  an  ecclesiastical  Court  to  the  High  Court,  notifying  that  the 
person  named  therein  has  been  pronounced  guilty  of  contumacy  and 
contempt  of  the  law  and  jurisdiction  ecclesiastical  in  not  obeying  certain 
specified  commands,  or  in  having  committed  a  contempt  in  the  face  of 
the  Court,  and  praying  that  the  body  of  the  said  person  may  be  taken 
and  imprisoned  for  his  contumacy  and  contempt.  Upon  this  the  writ 
de  contumace  capiendo  issues.  (See  the  form  of  a  signiticavit  in  Sched.  A 
to  53  Geo.  III.  c.  127 ;  see  also  Dale's  Case,  1881,  6  Q.  B.  D.  376  ;  Ex 
parte  Bell  Cox,  1887,  20  Q.  B.  D.  1 ;  and  title  Excommunication.) 

Sign  IVIanual . — The  sign  manual  or  signature  of  the  Sovereign, 
countersigned  by  the  proper  minister,  is  a  less  formal  manner  of  express- 
ing the  royal  pleasure  in  executive  action  than  the  use  of  the  Great 
Seal  or  an  Order  in  Council.  Custom  requires  that  in  some  cases,  as 
in  a  colonial  governor's  Commission,  and  in  powers  to  treat  with  foreign 
Powers  and  to  exchange  ratifications  of  treaties,  the  sign  manual  should 
be  further  authenticated  under  the  Signet  in  the  custody  of  the  Secre- 
tary of  State ;  and  in  a  colonial  governor's  Instructions  the  sign  manual 
is  not  countersigned,  but  solely  authenticated  by  the  apposition  of  the 
Signet.  Generally  speaking,  in  the  absence  of  custom  to  the  contrary 
in  a  few  instances,  a  sign  manual  warrant  is  necessary  to  authorise  the 


410  SILK 

affixing  of  the  Great  Seal ;  but  authority  may  also  be  given  by  Order  in 
Council  (see  the  Great  Seal  Act,  1884).  During  George  iv.'s  illness  the 
royal  signature  was  dispensed  with  by  11  Geo.  iv.  c.  23,  and  an  Act  of 
last  reign  (25  &  26  Vict.  c.  4)  empowered  the  Crown  by  Order  in 
Council  to  make  provision  for  issuing  commissions  to  officers  in  the 
army  without  the  royal  sign  manual.  (See  further,  Anson's  Lav:  and 
Custom  of  the  Constitution,  "The  Crown,"  part  i.,  1907.) 

Silk. — This  commodity  is  not  now  subject  to  any  taxation,  nor 
is  its  manufacture  under  any  special  regulation,  except  that,  under  8  &  9 
Vict.  c.  128,  a  manufacturer  of  goods  of  pure  silk,  or  of  silk  and  other 
materials,  must,  with  any  work  given  to  be  woven,  give  the  weaver  a 
ticket  specifying  the  quality  of  the  warp,  and  details  of  the  contract. 
It  is  evidence  in  subsequent  disputes.  The  procedure  for  settlement  of 
disputes  by  justices  is  now  regulated  by  the  Employers'  and  Workmen's 
Act,  1875,  and  the  Summary  Jurisdiction  Acts,  1879  and  1884.  See 
also  Embezzlement  ;  Larceny  ;  Receiving. 

Similiter. — The  name  given  to  the  formal  joinder  of  issue  under 
the  old  practice.  The  one  party  having  "jput  himself  upon  the  country," 
or  prayed  that  the  matter  in  question  might  be  inquired  by  the  country, 
issue  was  joined  thus:  "And  the  said  'plaintiff'  [or  'defendant']  doth 
the  like ; "  and  it  was  from  the  latter  words  that  the  joinder  of  issue 
was  termed  the  similiter  (Stephen,  Pleading,  5th  ed.,  p.  271). 

Simony. — Simony  is  the  entering  into  a  contract  by  which  Holy 
Orders  or  ecclesiastical  preferment  are  to  be  given  for  monetary  or  other 
valuable  consideration,  e.g.  marriage.  It  has  been  condemned  by  the 
canon  law  from  the  earliest  ages  of  the  Church,  and  Canon  40  of  1603 
provided  a  form  of  oath,  to  be  taken  by  everyone  appointed  to  an  eccle- 
siastical preferment,  that  he  had  not  obtained  it  simoniacally,  and  would 
not  thereafter  perform  any  simoniacal  contract  with  respect  to  it  entered 
into  by  anyone  else  on  his  behalf.  But  by  28  &  29  Vict.  c.  122,  s.  2, 
1865,  this  oath  is  abolished,  and  a  declaration  to  the  same  effect  substi- 
tuted for  it.  31  Eliz.  c.  6  (1589)  provides  (s.  10)  that  the  simoniacal 
conferring  of  orders,  or  a  licence  to  preach,  shall  be  punishable  by  a  fine 
of  £40  on  the  person  conferring  or  procuring  the  conferring  of  the  orders 
or  licence,  and  of  £10  on  the  recipient,  and  avoids  any  ecclesiastical 
promotion  accepted  by  the  latter  within  seven  years ;  while  sees.  5  and  6 
avoid  simoniacal  presentations  and  institutions,  and  impose  a  penalty 
for  them  of  two  years'  profit  of  the  benefice,  disable  the  corrupt  pre- 
sentee thenceforth  to  enjoy  it,  and  empower  the  Crown  to  present  for 
that  term.  Sec.  8  deals  with  corrupt  resignations,  as  to  which  see 
Resignation  Bonds  ;  and  sec.  9  preserves  the  power  of  the  ecclesiastical 
Courts  to  punish  for  the  offence,  which  they  may  still  do  independently 
of  statute,  by  deprivation  of  the  benefice  and  {Lee  v.  Merest,  1869, 
39  L.  J.  Ec.  53)  by  deprivation  from  the  ministry.  In  Beneficed  Clerk 
V.  Lee,  [1897]  A.  C.  226,  it  was  held  that  neither  simony  nor  a  false 
declaration  against  it  could  be  proceeded  against  under  the  Clergy 
Discipline  Act,  1892,  and  that  recourse  must  be  had  to  the  Church 
Discipline  Act,  1840  (see  Discipline,  Ecclesiastical).  Now,  however, 
the  effect  of  the  decision  in  Beneficed  Clerk  v.  Lee  is  largely  got  rid  of 
by  the  provisions  of  the  Benefices  Act,  1898,  61  &  62  Vict.  c.  48.  By 
sec.  1  of  that  statute  it  is,  inter  alia,  provided  that  any  agreement  for 


SITE  411 

any  exercise  of  a  right  of  patronage  of  a  benefice  in  favour  of  or  on  the 
nomination  of  a  particular  person,  and  any  agreement  on  the  transfer 
of  a  right  of  patronage  of  a  benefice — (a)  for  the  re-transfer  of  the 
right ;  (b)  for  postponing  payment  of  any  part  of  the  consideration  for 
the  transfer  until  a  vacancy  or  for  more  than  three  months ;  or  (c)  for 
payment  of  interest  until  a  vacancy  or  for  more  than  three  months ;  or 
{d)  for  any  payment  in  respect  of  the  date  at  which  a  vacancy  occurs ; 
or  (e)  for  the  resignation  of  a  benefice  in  favour  of  any  person,  shall  be 
invalid.  In  the  schedule  to  the  Act  a  new  form  of  declaration  against 
simony  is  provided  and  the  Act  provides  (sec.  1,  subs.  4),  that  if  any 
person  knowingly  makes  any  false  statement  in  this  declaration  he  shall 
be  guilty  of  a  misdemeanor  and  be  liable  to  the  punishment  attaching 
by  law  to  perjury.  Subs.  5  of  sec.  1  provides  that  if  any  clergyman 
is  knowingly  party  or  privy  to  any  transfer,  presentation,  or  agreement 
which  is  invalid  under  the  section,  or  commits  any  breach  of  the  pro- 
missory part  of  his  declaration,  he  shall  be  guilty  of  an  offence  in  respect 
of  which  proceedings  may  be  taken  under  sec.  2  of  the  Clergy  Discipline 
Act,  1892.  In  respect  of  any  simoniacal  act  other  than  those  specified 
in  this  statute,  proceedings  would  still  have  to  be  taken  under  the 
Clergy  Discipline  Act,  1840.  1  Will.  &  Mary,  c.  16,  s.  1, 1689,  provides 
that  simony  shall  not,  after  the  death  of  the  person  simoniacally  pro- 
moted, be  alleged  or  pleaded  to  the  detriment  of  an  innocent  patron 
or  clerk ;  and  sec.  2  renders  valid  bond-fide  leases  made  by  a  simoniac 
or  a  simoniacally  promoted  person.  It  is  simoniacal  in  anyone  to  sell 
a  next  presentation  if  the  church  be  void  {Grey  v.  Hesketh,  Amb.  268) ; 
but  not  if  the  incumbent  be  in  extremis  {Fox  v.  Bishop  of  Chester,  1829, 
6  Bing.  1;  32  E.  K.  23);  and  12  Anne,  stat.  2,  c.  12,  1713,  prohibits 
the  purchase  of  next  presentations  by  clergymen.  See  Advowson; 
Presentation. 

[Authorities. — Phillimore's  Ucc.  Law,  2nd  ed. ;  Whitehead's  Church 
Law,  2nd  ed. ;  Hardy's  Benefices  Act  and  Ecclesiastical  Proceedings.'] 

Simple  Larceny. — See  Larceny. 

Sinecure. — This  word  (from  the  Latin  sine,  without,  cura,  care) 
is  popularly  applied  to  any  office  carjying  a  revenue  or  salary  to  which 
no  employment  or  duties  are  annexed. 

In  ecclesiastical  law,  when  the  rector  of  a  parish  had  no  cure  of 
souls,  that  is,  neither  resided  nor  performed  duty  at  his  benefice,  the 
cure  being  in  the  hands  of  a  vicar  under  him,  he  was  called  a  sinecure 
rector.  See  Rector.  Also,  when  a  church  had  fallen  down  and  the 
parish  had  become  destitute  of  parishioners,  it  was  said  to  have  become 
a  sinecure  (Wood's  Ins.,  153). 

Singular.— The  Interpretation  Act,  1889,  provides  (s.  1)  that 
in  that  Act  and  in  every  Act  passed  after  1850,  words  in  the  singular  shall 
include  the  plural,  and  words  in  the  plural  shall  include  the  singular, 
unless  a  contrary  intention  appears. 

Sinking  Fund.— See  National  Debt. 

Site. — This  term  in  relation  to  a  house,  building,  or  other  erection, 
was  defined  by  sec.  14  of  the  Metropolis  Management  and  Building 
Acts  Amendment  Act,   1878,   as   meaning   "the  whole  space   to   be 


412  SITHCUNDMAN 

occupied  by  such  house,  building,  or  other  erection  between  the  level 
of  the  bottom  of  the  foundations  and  the  level  of  the  base  of  the 
walls."  The  section  containing  this  definition,  however,  has  been  re- 
pealed by  the  London  Building  Act,  1894,  and  no  other  definition  has 
been  substituted. 

Sithcundman  (also  Gcsithcundman).— A  man  in 

the  rank  of  gesith  or  comes  ;  the  retainer  of  a  king  or  lord,  and  so  en- 
nobled by  service  (Stubbs's  Select  Charters,  Gloss.).  The  term  was  also 
applied  to  the  chief  man  of  a  town  or  parish. 

Sitting's. — Terms  were  abolished  by  the  Judicature  Act,  1873, 
s.  26.  It  was  provided  by  sees.  30  and  37  of  that  Act  that  in  place  of 
the  old  terms,  sittings  should  be  held  for  the  trial  of  causes  in  Middle- 
sex and  London  continuously  throughout  the  year  except  during  vaca- 
tions. Accordingly,  by  the  E.  S.  C,  1883,  Order  63,  r.  1,  it  is  directed 
that  there  shall  be  four  sittings  of  the  Court  of  Appeal  and  of  the  High 
Court  of  Justice  in  London  and  Middlesex  in  every  year,  namely,  the 
Michaelmas  sittings  from  2nd  November  to  2l8t  December,  the  Hilary 
sittings  from  11th  January  to  the  Wednesday  before  Easter,  the  Easter 
sittings  from  the  Tuesday  after  Easter  week  to  the  Friday  before  Whit- 
sunday, and  the  Trinity  sittings  from  the  Tuesday  after  Whitsun  week 
to  8th  August.  By  Order  in  Council  dated  December  12,  1883,  the 
Trinity  sittings  were  ordered  to  terminate  on  12th  August  and  the 
Michaelmas  sittings  to  commence  on  24th  October.  By  a  subsequent 
Order  in  Council  dated  March  1,  1907,  the  Trinity  sittings  were  ordered 
to  terminate  on  31st  July,  and  the  Michaelmas  sittings  to  commence 
on  12th  October.  Sittings  shall  be  held  in  vacation  as  occasion  may 
require  (see  Order  63,  r.  12,  and  the  Judicature  Act,  1873,  s.  28).  The 
Court  need  not  sit  on  the  day  appointed  to  be  kept  as  the  King's  Birth- 
day celebration  day  (Order  63,  r.  2). 

The  sittings  of  the  offices  of  the  Supreme  Court  extend  over  the 
whole  of  the  periods  between  the  vacations  (Order  63,  r.  3).  Office 
hours  are  from  10  to  4,  except  on  Saturdays,  when  the  offices  close  at  1, 
and  during  vacation,  when  on  days  other  than  Saturday  they  close  at  2. 
In  the  Summons  and  Order  Department  the  hours  are  from  10.30  to 
4.30,  except  on  Saturdays,  when  they  are  from  10.30  to  1.30,  and  in 
vacations,  when  they  are  from  10.30  to  2.30.  In  the  Crown  Office  and 
Associates  Departments  the  hours  are  from  11  to  5,  except  on  Saturdays 
and  in  vacations,  when  they  are  from  11  to  2  (Order  63,  rr.  8,  9). 

Sittings  in  chambers  are  included  in  sittings  at  the  Koyal  Courts  of 
Justice  {Petty  v.  Daniel,  1886,  34  Ch.  D.  172). 

A  notice  of  motion  for  a  day  after  the  sittings  terminate  is  good 
{In  re  Coulton,  1886,  34  Ch.  D.  22),  and  may  be  amended  ( Williams  v. 
De  Boinville,  1886,  17  Q.  B.  D.  180).  See  also  CiiicuiTS  and  Assizes  ; 
Vacation. 

Sky  Signs. — In  1891  a  local  Act  was  passed  for  the  regulation 
and  supervision  of  sky  signs  in  London  (54  &  55  Vict.  c.  Ixxviii.),  which, 
after  amendment  in  1893  (56  &  57  Vict.  c.  ccxxi.  s.  17),  was  superseded 
by  Part  XII.  of  the  London  Building  Act,  1894,  57  &  58  Vict.  c.  ccxiii. 
Since  August  25,  1894,  it  is  illegal  to  erect  newly  any  sky  sign  as 
defined  by  sec.  125  (ss.  127,  200  (11));  and  signs  erected  under  licence 
under  the  prior  Acts  could  be  retained  under  renewal  licences  for  a 


SLANDER  OF  TITLE  413 

limited  period,  which  has  now  expired  (ss.  128,  129).  The  Act  is  en- 
forced in  the  City  of  London  by  the  common  council  on  report  of  the 
district  surveyor  or  a  special  surveyor,  and  elsewhere  in  London  by  the 
County  Council.  The  powers  of  enforcement  include  a  right  to  prose- 
cute and  to  alter  and  remove  the  sign. 

The  only  questions  which  can  now  arise  are,  whether  any  erection 
falls  within  the  definition  in  sec.  125  (see  London  County  Council  v. 
Carwardine,  1892,  68  L.  T.  61 ;  62  L.  J.  M.  C.  40 ;  57  J.  P.  181 ;  Tussaud 
V.  London  County  Council,  1893,  57  J.  P.  184;  London  County  Council 
V.  Savoy  Hotel  Co.,  1896,  12  T.  L.  R.  468;  and  Hunt,  London  Local 
Government,  i.  449  ;  Glen,  London  Building  Acts). 

Until  1907  there  was  no  general  legislation  applying  to  sky  signs 
outside  London,  but  in  that  year  was  passed  the  Public  Health  Acts 
Amendment  Act,  1907,  7  Edw.  vii.  c.  53,  Part  IX.  of  which  relates  to 
sky  signs.  The  Act  extends  to  those  districts  in  which  it  has  been 
applied  by  order  of  the  Local  Government  Board  or  of  the  Secretary  of 
State  (see  sec.  1).  Future  erection  of  sky  signs  is  forbidden.  Existing 
signs  are  accorded  three  years'  grace,  but  even  for  that  period  the  licence 
of  the  local  authority  must  be  obtained  and  they  may  prescribe  terms 
and  conditions  (s.  91  (1)  (a)).  Sky  signs  must  not  be  altered  or  varied 
except  to  make  them  safe  {ibid.  (1)  (J));  and  if  altered  or  varied  may 
be  removed  by  the  local  authority  under  the  Towns  Improvements 
Clauses  Act,  1847.  By  sec.  91  (2)  there  is  a  pecuniary  penalty  for  con- 
travening sky  sign  provisions. 

A  "  sky  sign  "  under  the  Act  means — Any  word,  letter,  model,  sign, 
device,  or  representation  in  the  nature  of  an  advertisement,  announce- 
ment, or  direction  supported  on  or  attached  to  any  post,  pole,  standard, 
framework,  or  other  support  wholly  or  in  part  upon,  over,  or  above  any 
house,  building,  or  structure  which,  or  any  part  of  which,  sky  sign  shall 
be  visible  against  the  sky  from  some  point  in  any  street  or  public  way, 
and  includes  all  and  every  part  of  any  such  post,  pole,  standard,  frame- 
work, or  other  support.  The  expression  "  sky  sign  "  also  includes  any 
balloon,  parachute,  or  other  similar  device  employed  wholly  or  in  part 
for  the  purposes  of  any  advertisement  or  announcement  on,  over,  or 
above  any  house,  building,  structure,  or  erection  of  any  kind,  or  on  or 
over  any  street  or  public  way ;  but  does  not  include  (a)  any  flagstaff, 
pole,  vane,  or  weathercock  unless  adapted  or  used  wholly  or  in  part  for 
the  purpose  of  any  advertisement  or  announcement;  {h)  any  sign  or 
any  board,  frame,  or  other  contrivance  securely  fixed  to  or  on  the  top 
of  the  wall  or  parapet  of  any  building,  or  on  the  cornice  or  blocking 
course  of  any  wall,  or  to  the  ridge  of  a  roof :  Provided  that  such  board, 
frame,  or  other  contrivance  be  of  one  continuous  face  and  not  open 
work,  and  do  not  extend  in  height  more  than  three  feet  above  any  part 
of  the  wall  or  parapet  or  ridge  to,  against,  or  on  which  it  is  fixed  or 
supported ;  (c)  any  word,  letter,  model,  sign,  device,  or  representation, 
as  mentioned  above,  relating  exclusively  to  the  business  of  a  railway  or 
canal  company,  and  placed  wholly  upon  or  over  any  railway,  canal, 
railway  station,  wharf,  quay,  yard,  platform,  or  station  or  wharf  or  quay 
approach  belonging  to  a  railway  or  canal  company,  and  so  placed  that 
it  cannot  fall  into  any  street  or  public  place. 

Slander. — See  Defamation. 

Slander  of  Title. — This  is  the  name  given  to  any  words, 
whether  spoken  or  written,  which  impugn  the  plaintiffs  title  to  any 


414  SLANDER  OF  WOMEN  ACT,  1891 

property,  real  or  personal,  in  possession  or  remainder,  vested  or  con- 
tingent. Words  which  disparage  the  goods  which  the  plaintiff  sold  or 
manufactured  were  formerly  called  libels,  or  slanders,  "  in  the  nature 
of  slander  of  title."  For  the  law  relating  to  both  these  classes  of  words 
see  Words  Causing  Damage. 

Slander  of  Women  Act,  1 89 1  (54  &  55  Vict.  c.  51).— 
See  Defamation,  Vol.  IV.  p.  468. 

Slate  Mines;  Quarries.— See  Mines  and  Minerals, 
Vol.  IX. 

Slaug'hter  -  house.  —  Knackers-yards.  —  Places  used  for 
slaughtering  animals  have  long  been  subjected  to  statutory  restrictions 
contained  in  different  Acts  of  Parliament  passed  for  various  purposes. 

In  the  year  1786  an  Act  (26  Geo.  iii.  c.  71)  was  passed  to  discourage, 
the  stealing  of  horses,  cows,  aild  other  cattle,  which  forbade  persons  to 
keep  any  house  or  place  for  the  purpose  of  slaughtering  or  killing  any 
horse,  ox,  sheep,  hog,  goat,  or  other  cattle,  which  shall  not  be  killed  for 
butcher's  meat  without  first  obtaining  a  licence  from  Quarter  Sessions. 
This  Act  contains  provisions  for  keeping  books  containing  proper  entries 
of  all  animals  brought  to  be  slaughtered,  and  for  inspection  of  all  houses 
licensed  under  it.  Its  provisions  were  extended  in  the  year  1835  by  an 
Act,  5  &  6  Will.  IV.  c.  59,  which  recited  that  great  cruelty  was  practised 
by  reason  of  disused,  old,  and  worn-out  horses,  sold  or  taken  to  slaughter- 
men for  the  purpose  of  slaughter,  being  frequently  re-sold  or  compelled 
to  work  or  kept  without  sufficient  food ;  and  for  remedy  thereof  provided 
that  horses  or  other  cattle  must  be  slaughtered  within  three  days  after 
being  brought  into  the  licensed  place,  and  must  in  the  meantime  be 
properly  provided  with  food.  The  law  was  again  amended  in  1844  (7  & 
8  Vict.  c.  87).  By  that  Act  licences  subsequently  granted  were  made 
renewable  annually,  and  power  was  given  to  Quarter  Sessions  to  cancel 
existing  licences  on  proof  of  violation  of  either  of  the  above-recited  Acts. 
Other  sections  for  preventing  cruelty  were  substituted  in  1849  for 
those  of  the  earlier  Act  of  1835  (11  &  12  Vict.  c.  92,  ss.  7-11),  which 
deal  specifically  with  licensed  slaughter-houses.  These  Acts  of  1786, 
1844,  and  1849,  now  known  as  the  Knackers  Acts,  are  still  in  force 
outside  London ;  but  the  power  of  granting  (and  apparently  of  cancelling) 
licences  was  transferred  in  1894  from  the  Quarter  Sessions  to  the  then 
newly  created  district  councils  (56  &  57  Vict.  c.  73,  s.  27). 

There  were  no  general  statutory  regulations  for  places  where  cattle 
were  slaughtered  for  human  food  till  the  year  1847.  The  Markets  and 
Fairs  Clauses  Act  of  that  year  (10  Vict.  c.  14)  enabled  persons  authorised 
by  special  Act  to  provide  or  set  apart  or  improve  buildings  for  the 
slaughtering  of  cattle,  and  to  prevent  any  new  buildings,  except  those 
so  provided,  being  thereafter  used  for  the  purpose  (ss.  17-20).  County 
councils  and  councils  of  large  boroughs  now  have  these  powers,  by  virtue 
of  the  Diseases  of  Animals  Act,  1894,  57  &  58  Vict.  c.  57,  s.  32,  but 
district  councils,  as  a  rule,  are  without  them.  The  Towns  Improvement 
Clauses  Act,  1847,  10  &  11  Vict.  c.  34,  ss.  125-131,  further  empowered 
Commissioners  deriving  their  authority  under  special  Act,  to  license 
such  slaughter-houses  and  knackers-yards  as  they  should  think  proper, 
prohibited  the  opening  of  a  new  slaughter-house  until  a  licence  for  its 
use  and  occupation  for  that  purpose  had  been  obtained,  and  required  all 


SLAUGHTEE-HOUSE  415 

existing  slaughter-houses  to  be  registered.  The  Commissioners  were 
also  required  to  make  by-laws  for  preventing  cruelty,  and  for  keeping 
slaughter-houses  clean.  In  case  of  conviction  under  the  Act  or  by-laws, 
the  licence  may  be  revoked.  The  Act  also  contains  a  section  (131) 
providing  for  the  inspection  of  all  places  used  for  the  slaughtering  of 
cattle  or  the  sale  of  butcher's  meat,  and  for  the  seizure  and  con- 
demnation of  any  carcass,  or  part  of  a  carcass,  unfit  for  the  food  of  man 
which  may  be  found  therein.  The  above  sections  were  in  the  year 
1858  incorporated  in  the  Public  Health  Acts,  and  now  are  in  force 
in  all  urban  sanitary  districts,  the  urban  district  council  or  borough 
council  being  the  authority  to  administer  them,  instead  of  the  Com- 
missioners. 

Under  the  original  Act  of  1847  no  limit  was  placed  on  the  duration 
of  a  licence ;  and  when  once  granted  it  continued  in  force  indefinitely, 
unless  forfeited  on  conviction.  Many  places  unfit  for  the  purpose, 
according  to  modern  notions,  consequently  continued  to  be  used.  Power 
to  remedy  this  was  given  by  the  Public  Health  Amendment  Act,  1890, 
53  &  54  Vict.  c.  59,  s.  29,  as  regards  new  licences  granted  after  the 
adoption  of  Part  III.  of  that  Act.  Such  licences  are  to  be  in  force  for 
such  time  only,  not  being  less  than  twelve  months,  as  the  urban 
authority  shall  think  fit  to  specify.  Licences  granted  in  a  district  prior 
to  the  adoption  of  that  Act  cannot  apparently  be  revoked  as  long  as  the 
holders  conform  to  the  conditions  imposed  by  the  Acts. 

An  urban  authority  have  now  also  power,  under  sec.  169  of  the 
Public  Health  Act,  1875,  to  provide  slaughter-houses  without  the 
necessity  of  obtaining  a  special  Act  incorporating  the  sections  of  the 
Markets  and  Fairs  Clauses  Acts  above  referred  to ;  and  where  they  do, 
shall  make  by-laws  with  respect  to  the  management  and  charges  for  the 
use  of  any  slaughter-houses  so  provided. 

Slaughtering  cattle  for  human  food,  except  in  a  public  or  licensed  or 
registered  slaughter-house,  is  an  offence  punishable  with  a  fine  under 
both  the  Acts  of  1834 ;  but  they  do  not  prohibit  the  slaughtering  of 
animals  generally  {Ellis  v.  Nightingale,  1858,  8  El.  &  Bl.  698).  To 
slaughter  or  dress  cattle  in  any  street,  to  the  obstruction,  annoyance,  or 
danger  of  the  residents  or  passengers,  except  in  the  case  of  cattle  which 
for  the  public  safety  or  other  reasonable  cause  ought  to  be  killed  on  the 
spot,  is  an  offence  under  sec.  28  of  the  Towns  Police  Clauses  Act,  10  & 
11  Vict.  c.  89,  applicable  by  virtue  of  the  Public  Health  Acts  to  all 
urban  districts.  But  slaughtering  of  animals  on  private  premises  in 
urban  districts,  if  not  for  human  food,  and  in  rural  districts,  is  not 
prohibited. 

Power  was  given  to  the  corporation  of  the  City  of  London,  by  two 
Acts  of  1851  (14  &  15  Vict.  c.  61)  and  1857  (20  &  21  Vict.  c.  cxxxv.), 
to  establish  and  manage  a  cattle  market  with  slaughter-houses  and  lairs 
for  cattle,  for  the  benefit  of  the  Metropolis.  And  it  was  provided  that 
no  other  places  should  be  used  as  a  slaughter-house  without  a  licence 
from  the  justices  acting  for  the  district  in  which  such  places  were 
situate.  The  provision  on  this  head  was  amended  and  re-enacted  by 
the  Metropolis  Management  Act,  1862,  25  &  26  Vict.  c.  102,  s.  93.  In 
1874  the  law  was  further  amended  (37  &  38  Vict.  c.  67).  The  business 
of  slaughtering  animals,  whether  for  human  food  or  not,  was  treated  as 
an  offensive  trade. 

The  business  of  a  knacker,  i.e.  slaughterer  of  animals  not  for  human 
food,  was  declared  to  be  one  which  could  no  longer  be  newly  established 


416  SLAVE  TRADE 

at  all,  and  that  of  a  slaughterer  of  cattle  for  the  purpose  of  the  flesh 
being  used  as  butcher's  meat,  one  which  could  only  be  established 
with  the  consent  of  the  local  authority.  These  provisions  were  enacted 
by  the  Public  Health  London  Act,  1891,  54  &  55  Vict.  c.  76,  s.  19, 
and  the  controlling  power  given  to  the  county  council.  Premises 
already  used  require  a  licence,  which  must  be  renewed  annually  {ibid., 
8.  20). 

Slave  Trade. — The  traffic  in  African  slaves  has  not  always 
been  considered  a  crime  against  mankind.  Even  Great  Britain,  to  whom 
its  abolition  has  in  the  main  been  due,  used  her  position  in  1713  to 
obtain  a  contract  with  Spain  to  allow  the  subjects  of  Great  Britain  the 
liberty  of  importing  negroes  into  Spanish  America,  for  the  "  mutual  and 
reciprocal  advantage  to  the  Sovereigns  and  subjects  of  both  Crowns." 
Public  opinion,  in  fact,  was  only  seriously  moved  against  slavery  by  the 
systematic  agitation  of  Wilberforce  towards  the  end  of  the  last  century, 
and  even  then  a  bill  introduced  by  him  in  1788  was  lost  owing  to  the 
opposition  of  the  English  slave-dealing  interest. 

In  1788  the  Privy  Council  by  Royal  Order,  however,  appointed  a 
committee  to  inquire  into  the  state  of  the  slave  trade.  An  Act  also 
was  passed  to  regulate  the  treatment  and  stowage  of  slaves  on  board 
ship,  and  in  1805  an  Order  in  Council  prohibited  slave  trade  to  the 
newly  annexed  colonies. 

But  slave  trade  generally  was  not  made  illegal  till  the  passing  of  an 
Act  (January  1,  1808)  which  forbade  British  subjects  to  take  part  in 
the  traffic.  It  did  not  prevent  them  from  continuing  to  carry  on  the 
trade  under  cover  of  Spanish  and  Portuguese  flags,  and  later  on  the 
horrors  of  the  trade  became  greater  than  ever  owing  to  the  danger 
of  capture,  and  the  heavy  criminal  penalties  imposed  by  an  Act  of  1811. 
In  fact,  all  measures  proved  powerless  in  the  absence  of  combined 
action  among  the  different  maritime  nations. 

British  statesmen  then  turned  their  attention  to  obtaining  the 
co-operation  of  foreign  States. 

The  first  recognition  of  the  desirability  of  an  international  under- 
standing was  inserted  in  one  of  the  additional  articles  of  the  Treaty  of 
Paris  of  May  30,  1814,  when  France  agreed  to  join  in  the  efforts  of 
Great  Britain  to  procure  the  abolition  of  the  slave  trade  among  all  the 
Powers,  and  to  begin  herself  by  abolishing  the  traffic  within  a  period 
of  five  years.  At  the  Congress  of  Vienna  in  the  autumn  of  the  same 
year  the  question  was  raised  again,  and  the  British  representative  even 
offered  to  advance  the  necessary  sum  to  indemnify  French  slave  owners, 
if  France  would  proceed  to  the  abolition  of  slavery  forthwith  in  her 
dominions.  Talleyrand  declined  the  British  offer,  and  reserved  the 
question  till  after  the  Congress.  In  December  of  the  same  year  Lord 
Castlereagh  endeavoured,  without  success,  to  induce  the  Spanish  Govern- 
ment to  agree  to  an  immediate  abolition  of  the  trade,  and  relinquish 
the  eight  years'  reserve  made  by  that  Government  for  the  continuance 
of  the  trade  between  the  Equator  and  the  10th  degree  of  north  latitude. 
The  Spanish  representative  replied  that  the  English  slave-owning 
colonieb  had  foreseen  the  coming  abolition  of  the  traffic,  and  had  had 
time  between  1788  and  1807  to  increase  their  stock  of  slaves,  whereas 
the  Spanish  colonies  had  not  been  in  the  same  favourable  position,  that 
the  result  had  been  that  in  Jamaica  there  were  400,000  slaves  to  40,000 
Europeans,  whereas  in  Cuba,  the  best  supplied  Spanish  colony,  there 


SLAVE  TEADE  417 

were  only  212,000  slaves  to  274,000  Europeans,  and  that  it  would  be 
ruinous  to  arrest  the  importation  of  slaves,  Portugal  gave  a  similar 
answer,  but  in  January  1815  she  consented  to  a  treaty  with  Great 
Britain  for  the  joint  repression  of  the  maritime  tratitic  north  of  the 
Equator. 

At  the  Congress  of  Vienna  four  sittings  devoted  to  the  question 
only  extracted  the  platonic  proclamation  of  the  wish  to  see  "  un  terme 
h  un  fl^au  qui  a  si  longtemps  desol(^  I'Afrique,  degrade  I'Europe  et  afflige 
I'humanite."  An  additional  article  to  the  Treaty  of  Paris  of  November  20, 
1815,  went  further,  pledging  the  parties  to  "  concerter  sans  perte  de 
temps  .  .  .  les  mesures  les  plus  efficaces  pour  obtenir  I'abolition  entiere 
et  definitive  d'un  commerce  aussi  odieux  et  aussi  hautement  reprouv^ 
par  les  lois  de  la  religion  et  de  la  nature." 

The  question  was  raised  again  at  the  Congress  of  Aix-la-Chapelle 
in  1818.  A  few  years  later  a  declaration  of  the  Congress  of  Verona 
attributed  the  failure  of  the  measures  taken  to  the  absence  of  universal 
effort. 

Prom  this  declaration  dates  the  great  international  effort,  led  by 
Great  Britain,  to  extinguish  slavery.  Between  1822  and  1850  this 
country  entered  into  some  forty  treaties  connected  with  the  subject. 

In  1849-50,  as  appears  from  a  report  drawn  up  in  1853  by  a  com- 
mittee of  the  House  of  Commons,  there  were  twenty-four  treaties  in 
force  between  Great  Britain  and  foreign  civilised  Powers  for  the 
suppression  of  the  slave  trade,  ten  of  which  provided  for  the  right  of 
search  and  mixed  Courts,  twelve  for  the  right  of  search  and  national 
tribunals,  and  two  (viz.,  with  the  United  States  and  France)  which 
provided  for  no  right  of  search,  but  contained  a  mutual  obligation  to 
maintain  squadrons  on  the  coast  of  Africa. 

The  Slave  Trade  Acts  (under  which  slavery  is  practically  assimilated 
to  piracy),  dating  from  59  Geo.  ill.  c.  16,  to  32  &  33  Vict.  c.  2  (number- 
ing forty-nine),  were  consolidated  and  repealed  in  whole  or  in  part  by 
"  an  Act  for  consolidating  with  amendments  the  Acts  for  carrying  into 
effect  treaties  for  the  more  effectual  suppression  of  the  slave  trade, 
and  for  other  purposes  connected  with  the  slave  trade,"  August  5,  1873 
(36  &  37  Vict.  c.  88).  "  Treaty  "  is  defined  in  it  to  include  any  "  con- 
vention, agreement,  engagement,  or  arrangement."  Sec.  29  provides- 
that  "  where  any  treaty  in  relation  to  the  slave  trade  is  made  after  the 
passing  of  this  Act,  by  or  on  behalf  of  the  Crown,  with  any  foreign 
State,  the  Crown  may,  by  Order  in  Council,  direct  that  as  from  such 
date,  not  being  earlier  than  the  date  of  the  treaty,  as  may  be  specified 
in  the  Order,  such  treaty  shall  be  deemed,  and  thereupon — as  from  the 
said  date,  or  if  no  date  is  specified  as  from  the  date  of  sucli  Order — 
such  treaty  shall  be  deemed  to  be  an  existing  slave  trade  treaty  within 
the  meaning  of  this  Act,  and  all  the  provisions  of  this  Act  shall  apply 
and  be  construed  accordingly. 

"  The  Crown,  may,  by  the  same  or  any  subsequent  Order  referring 
to  the  same  treaty,  render  the  application  of  this  Act  subject  to  such 
conditions,  exceptions,  and  qualifications  as  may  be  deemed  expedient." 

Under  this  section  Orders  in  Council  have  been  made,  directing 
that  the  treaties  therein  mentioned  shall  be  deemed  existing  slave 
treaties  within  the  meaning  of  the  Act.  The  effect  of  the  Orders  on  a 
treaty  is  that  the  regulations  contained  in  the  treaty  as  to — (1)  Visita- 
tion and  seizure  by  cruisers,  etc.,  of  suspected  slave  ships  (s.  3) ;  (2) 
definition  of  "  equipment "  of  vessels  for  slave  trade  (s.  4) ;  (3)  jurisdiction 
VOL.  XIII.  27 

■    / 


418  SLAVE  TRADE 

of  Admiralty  Courts  (ss.  5  and  18) ;  (4)  jurisdiction  of  mixed  Courts 
and  Commissions,  and  appointment  of  judges  therein  (ss.  7,  8,  and  18) ; 
(5)  disposal  of  condemned  vessels  (s.  9) ;  (6)  disposal  of  slaves  (s.  10) ; 
(7)  payment  of  proceeds  of  captured  vessels  (s.  18);  and  (8)  payment 
of  bounties  (s.  14)  are  substituted  for  or  consolidated  with  the  similar 
provisions  of  the  Act.  (By  sec.  27  of  the  Act,  slave  trade  offences  are 
added  to  the  first  schedule  of  the  Extradition  Act,  1870.) 

The  treaties  in  question  are :  Abyssinia,  June  3,  1884 ;  Treaty  of 
March  29,  1879,  extending  the  Treaty  of  December  20,  1841,  between 
Great  Britain,  Austria,  France,  and  Russia  to  Germany;  Egypt, 
August  4, 1877 ;  Johanna,  Treaty  of  October  10,  1882;  Mohilla,  Treaty 
of  October  24,  1882;  Persia,  May  1,  1882  ;  Turkey,  January  25,  1880, 
and  March  3,  1883.  Each  of  the  above-named  treaties  is  recited  at 
full  length  in  the  order. 

An  Order  in  Council  under  sec.  1  of  the  Slave  Trade  Act,  1876, 
declared  that  Indian  subjects  who  shall  in  certain  parts  of  Asia  and 
Africa  thereby  defined  commit  any  of  the  offences  defined  in  sees.  376, 
370,  and  371  of  the  Indian  Penal  Code  Act  45  of  1860,  or  abet  within 
the  meaning  of  the  5th  chapter  of  the  Code  the  commission  of  any  such 
offence,  shall  be  dealt  with  as  if  they  had  so  offended  in  British  India 
(June  1,  1877). 

The  subject  recently  came  once  more  to  the  front  in  connection  with 
the  settlement  of  Africa.  Articles  20  to  24  and  42  to  49  of  the  3rd 
chapter  of  the  General  Act  of  Brussels,  1885,  regulate  the  conditions 
under  which  an  attenuated  right  of  visit  and  search  was  granted  to  the 
armed  cruisers  of  the  signatory  States  over  vessels  not  exceeding  a 
certain  tonnage  (500  tons)  and  within  a  limited  zone. 

Fugitive  Slave. — A  slave  escaping  to  this  country  or  to  any  British 
possession  becomes  ipso  facto  free,  and  will  not  be  surrendered  to 
his  former  owner.  The  same  principle  applies  to  slaves  escaping  to 
British  ships  on  the  high  seas,  which  are  theoretically  regarded  as 
detached  portions  of  the  British  Empire.     (See  Exterritokiality.) 

This  would  not  apply  to  a  British  ship  in  the  territorial  waters  of  the 
State  from  which  the  slave  has  escaped,  and  the  question  has  arisen 
whether  it  applies  to  a  British  public  ship  in  the  territorial  waters  of 
such  a  State.  Instructions  issued  by  the  British  Admiralty,  dated 
December  5,  1875,  restricting  the  protection  granted  to  fugitive  slaves 
by  the  British  flag  were  warmly  criticised,  and  gave  rise  to  the  appoint- 
ment of  a  Commission  in  1876 — 

to  inquire  into  and  report  upon  the  nature  and  extent  of  such  international 
obligations  as  are  appHcable  to  questions  as  to  the  reception  of  fugitive 
slaves  by  Your  Majesty's  ships  in  the  territorial  waters  of  foreign  States, 
and  into  all  instructions  from  time  to  time  issued  to  the  commanders  of 
Your  Majesty's  ships  relative  thereto ;  and  whether  any  engagements  into 
which  this  country  has  entered  bear  upon  such  questions ;  and  whether  in 
case  such  obligations,  instructions,  or  engagements  shall  appear  to  be  at 
variance  with  the  maintenance  by  Your  Majesty's  ships  and  officers,  in  what- 
ever waters  they  may  be,  of  the  right  of  personal  liberty,  any  and  what  steps 
should  be  taken  to  secure  for  them  greater  freedom  of  action  in  this  respect. 

The  recommendations  of  the  Committee  led  to  the  withdrawal  of 
the  instructions  of  1875,  which  were  superseded  by  the  following : — 

1.  In  any  case  in  which  you  have  received  a  fugitive  slave  into  your  ship 
and  taken  him  under  the  protection  of  the  British  flag,  whether  within  or 


SMOKE  419 

beyond  the  territorial  waters  of  any  State,  you  will  not  admit  or  entertain 
any  demand  made  upon  you  for  his  surrender  on  the  ground  of  slavery. 

2.  It  is  not  intended,  nor  is  it  possible,  to  lay  down  any  precise  or  general 
rule  as  to  the  cases  in  which  you  ought  to  receive  a  fugitive  slave  on  board 
your  ship.  You  are,  as  to  this,  to  be  guided  by  considerations  of  humanity, 
and  these  considerations  must  have  full  eftect  given  to  them,  whether  your 
ship  is  on  the  high  seas  or  within  territorial  waters  of  a  State  in  which 
slavery  exists  ;  but  in  the  latter  case  you  ought,  at  the  same  time,  to  avoid 
conduct  which  may  appear  to  be  in  breach  of  international  comity  and  good 
faith. 

3.  If  any  person  within  territorial  waters  claims  your  protection  on  the 
ground  that  he  is  kept  in  slavery  contrary  to  treaties  with  Great  Britain, 
you  should  receive  him  till  the  truth  of  his  statement  is  examined  into. 
This  examination  should  be  made,  if  possible,  after  communication  with  the 
nearest  British  consular  authority,  and  you  should  be  guided  in  your  subse- 
quent proceedings  by  the  result. 

4.  A  special  report  is  to  be  made  of  every  case  of  a  fugitive  slave  received 
on  board  your  ship. 

[See  Wheaton,  Elements  of  International  Law,  4th  Eng.  ed.,  1904, 
ss.  125-133^,  pp.  206-219.] 

Small -Pox. — See  Infectious  Diseases;  Vaccination. 

Smelting^  Works. — The  Alkali,  etc.,  Works  Regulation  Act, 
1906,  6  Edw.  VII.  c.  14,  extends  to  works  in  w^hich  sulphide  ores,  includ- 
ing regulus  are  calcined  or  smelted  (s,  8  (1)).  Such  works  cannot 
legally  be  carried  on  unless  registered  or  certified  (s.  9).  By  sec.  8  (1) 
power  is  given  to  inquire  whether  means  can  be  adopted  at  a  reasonable 
expense  to  prevent  discharge  from  the  furnaces  or  chimneys  of  such 
works  into  the  atmosphere  of  noxious  or  offensive  gas  evolved  in  such 
works  or  for  rendering  such  gas  when  discharged  harmless  or  inoffensive, 
If  it  appears  that  such  means  can  be  adopted  at  a  reasonable  expense, 
the  Local  Government  Board  may  make  an  order  requiring  the  owners 
to  adopt  them.  The  order  may  limit  the  amount  of  noxious  or  offensive 
gas  which  is  to  be  allowed  to  escape  into  the  chimney  of  the  works  or 
into  the  atmosphere,  and  may  apply  to  the  works  such  provisions  of  the 
Act,  relating  to  scheduled  works,  as  the  Board  thinks  fit  (s.  8  (2)).  The 
order  is  not  operative  until  confirmed  by  Parliament  (s.  8  (3)).  See 
Alkali  Works. 

Smoke. — l.  To  allow  smoke  to  issue  in  large  quantities  from  a 
chimney  or  fire  may  give  a  cause  of  action  or  prosecution  for  private  or 
public  nuisance  at  common  law  {R.  y.  Dewsnap,  1812,  16  East,  194; 
Cru7np  V.  Lambert,  1867,  L.  R.  3  Eq.  409;  1  &  2  Geo.  iv.  c.  41,  s.  8, 
preamble ;  Smith  v.  Midland  Ely.  Co.,  1877,  25  W.  R.  861). 

2.  Under  1  &  2  Geo.  iv.  c.  41,  special  remedies  are  given  on  conviction 
or  indictment  for  causiAg  nuisances,  or  for  improper  construction  or 
negligent  working  of  the  furnaces  of  certain  classes  of  steam-engines ; 
and  under  sec.  114  of  the  Railways  Clauses  Act,  1845,  railway  engines 
are  required  to  be  constructed  so  as  to  consume  their  own  smoke ;  and 
if  they  are  not  so  constructed,  or  they  fail  to  consume  their  own  smoke, 
so  far  as  practicable,  through  default  of  the  company  or  its  servant,  the 
company  is  liable  to  a  penalty  (31  &  32  Vict.  c.  119,  s.  19 ;  and  see 
Smith  V.  Midland  Bly.  Co.,  supra).     Steam- vessels  on  the  Thames  plying 


420  SMUGGLING 

above  the  Nore  are  required  to  be  constructed  so  as  to  consume  their 
own  smoke,  and  to  consume  it  so  far  as  practicable ;  but  it  is  not  clear 
whether  proceedings  may  be  taken  by  the  port  sanitary  authority  alone 
or  by  other  authorities  in  London  (54  &  55  Vict.  c.  76,  s.  23  (3),  (5),  (7)). 

Locomotives  on  roads  are  under  like  obligation  (41  &  42  Vict.  c.  77, 
s.  30 ;  60  &  61  Vict.  c.  54). 

As  to  smoke  arising  from  the  chimneys  of  private  houses  or  factories, 
mills,  mines,  etc.,  see  Chimney,  Vol.  III.  p.  41. 

As  to  smoke  arising  from  the  excessive  lubrication  of  motor  omni- 
buses, see  sec.  30  Highways  and  Locomotives  (Amendment)  Act,  1878, 
and  Star  Ovmihus  Co.  v.  Tagg,  1907,  23  T.  L.  E.  488. 

[^Authorities. — Lumley  on  Public  Health;  Glen  on  Public  Health; 
Fitzgerald,  Public  Health  Acts ;  Hunt,  London  Government.'\ 

Smug'g'Iing'. — Before  the  great  reduction  of  the  British  tariffs 
consequent  on  the  adoption  of  our  modern  fiscal  system,  and  especially 
during  the  Napoleonic  wars,  smuggling — i.e.  introducing  into  England, 
without  paying  duty,  dutiable  goods,  or  prohibited  or  contraband  goods — 
was  extensively  and  profitably  practised ;  which  led  to  many  stringent 
enactments,  including  the  Hovering  Acts,  which  permitted  search  of 
foreign  vessels  on  the  high  seas  in  certain  cases :  a  form  of  legislation 
which  involves  an  assertion  of  extraterritorial  jurisdiction,  made  the 
basis  of  much  of  the  American  argument  in  the  Behring  Sea  Arbitra- 
tion. These  Acts  are  now  represented  by  the  Territorial  Waters 
Jurisdiction  Act,  1878,  and  sec.  179  of  the  Customs  Consolidation  Act, 
1876,  39  &  40  Vict.  c.  36. 

Prosecutions  under  the  Customs  laws  must  be  within  three  years  of 
the  offence  (1876,  s.  257).  They  must  be  instituted  by  the  law  officers 
or  an  officer  of  Customs  or  Inland  Eevenue,  and  may  be  tried  in  any 
county  in  England  (ss.  255,  258).  The  general  regulations  as  to  search, 
forfeitures,  etc.,  have  been  dealt  with  under  Customs. 

Smuggling,  as  an  offence  against  the  revenue,  is  now  merely  dealt 
with  by  the  Customs  Laws  Consolidation  Act,  1876,  39  &  40  Vict.  c.  36, 
which  creates  the  following  offences : — 

(1)  Signalling  in  the  night-time  on  or  within  six  miles  of  the  coast,  to  aid 
smuggling,  is  a  misdemeanor  (ss.  190,  191,  192). 

(2)  Assembling  to  the  number  of  three  or  more  to  run,  or  assist  in  running, 
prohibited,  restricted,  or  uncustomed  goods,  entails  a  penalty  of  £100;  and 
procuring  such  assembly  entails  imprisonment  for  twelve  months  ;  and  if 
persons  are  found  armed  or  disguised  for  the  purpose  of  running  such  goods, 
or  are  found  armed  and  disguised  with  uncustomed,  restricted,  or  prohibited 
goods  within  five  miles  of  the  coast  or  a  deal  or  a  tidal  river,  they  are  liable 
to  three  years'  imprisonment  (s.  189). 

(3)  Shooting  at  officers  in  the  army,  navy,  or  coastguard,  or  officers  of 
customs  or  excise,  while  on  preventive  duty,  is  a  felony  (s.  193).  It  is  not 
triable  at  Quarter  Sessions  (5  &  6  Vict.  c.  38,  s.  1). 

(4)  Rescue  of  goods  and  assault  of  revenue  officers  entails  a  penalty  not 
exceeding  £100  (44  &  45  Vict.  c.  12,  s.  12). 

(5)  Smuggling  by  merchant  seamen  is  punishable  under  sec.  225  of  the 
Merchant  Shipping  Act,  1894. 

(6)  Sale  by  hawkers  of  spirits  or  tobacco  is  punishable  (43  &  44  Vict.. 
c.  24,  s.  146 ;  5  &  6  Vict.  c.  93,  s.  13). 

SnufT. — See  Tobacco  and  Snuff. 


SOCIETE  ANONYME  421 

So. — This  word,  when  used  in  reference  to  something  to  be  done, 
means  that  the  particular  thing  is  to  be  done  in  the  manner  pointed 
out  (see,  per  Smith,  J.,  in  G.  W.  Rly.  Co.  v.  Halesowen  Bly.  Co.,  1883,  52 
L.  J.  Q.  B.  473,  479). 

"  So  devised  "  was  read  in  Giles  v.  Melsom,  1873,  L.  E.  6  H.  L.  24,  as 
meaning  "  hereinbefore  devised." 

Soa.p. — There  is  not  now  any  taxation  on  soap  nor  any  legislation 
specially  affecting  its  manufacture.  It  is  uncertain  whether  it  can  be 
regarded  as  a  drug  within  the  Sale  of  Food  and  Drugs  Acts,  unless  it  is 
advertised  as  having  medicinal  properties. 

SoCB.g'Ci — The  tenure  by  which  estates  in  fee  simple  are  now  held. 
It  is  generally  supposed  to  have  received  this  name  from  the  fact  that 
the  tenant  holding  by  this  tenure  was  bound  to  render,  among  other  fixed 
services,  that  of  suit  to  the  lord's  Court  or  "  soc."  At  the  time  of  the 
Domesday  Survey  this  tenure  was  confined  to  a  comparatively  limited 
area,  but  by  the  reign  of  Edw.  i.  it  had  extended  over  a  great  part  of 
England.  It  was  considered  a  less  honourable  tenure  than  that  by 
knight's  service  {q.v.),  but  it  was  in  reality  much  more  beneficial  to  the 
tenant,  inasmuch  as  the  services  he  rendered  to  the  lord  were  fixed  and 
certain,  and,  moreover,  it  was  free  from  the  oppressive  burdens  of  ward- 
ship and  marriage  which  were  incidents  of  the  tenure  by  knight's 
service.  The  incidents  of  socage  tenure  were — (1)  A  fixed  rent;  (2)  a 
relief  {q.v.)  paid  by  the  heir  on  the  death  of  the  tenant,  fixed  at  one  year's 
rent ;  (3)  an  oath  of  fealty  to  the  lord ;  (4)  suit  of  Court ;  and  (5)  the 
customary  aids  {q.v.)  for  knighting  the  lord's  eldest  son  and  marrying 
his  eldest  daughter.  As  none  of  the  incidents  were  of  a  servile  nature 
this  tenure  was  distinguished  from  villein  socage  or  villeinage  by  being 
called  "  free  socage." 

By  the  Statute  12  Car.  ii.  c.  24,  passed  immediately  after  the 
Restoration,  all  primer  seisins,  and  fines  for  alienation,  aids,  escuages, 
homages,  and  tenures  by  chivalry,  except  the  honorary  services  of  grand 
serjeanty  {q.v.),  were  abolished ;  and  all  tenures  of  estates  of  inheritance 
in  the  hands  of  private  persons  (except  tenures  in  frankalmoign  and 
copyhold  tenures)  were  converted  into  free  and  common  socage.  This 
statute  did  not,  however,  touch  the  incidents  of  socage  tenure  (except 
aids),  and  these  may  still  be  due ;  but  the  rent  which  may  be  payable  is 
usually  of  very  trifling  amount.  Suit  of  Court  can  only  apply  in  the 
case  of  freeholds  held  of  a  manor,  and  the  oath  of  fealty  is  seldom 
exacted.  In  addition  to  the  incidents  already  mentioned,  there  is  that 
of  escheat  {q.v.),  or  the  right  of  the  lord  of  whom  the  lands  are  held  to 
such  lands  on  the  death  of  a  tenant  without  having  disposed  of  the  same 
either  in  his  lifetime  or  by  will,  and  without  leaving  any  heirs  either  of 
the  purchaser  or  of  the  person  last  entitled  to  the  lands. 

[Authority. — Williams,  Eeal  Property,  20th  ed.,  pp.  49  et  seq.] 

Soci^t^  Anonymc. — In  French  law  a  soci^tS  anonyme  is  an 
association  of  persons  for  business  purposes  with  the  liability  of  all  the 
partners  limited,  as  distinguished  from  a  socidti  commandite,  a  species  of 
limited  partnership  in  which  the  liability  of  some  only  of  the  partners 
is  limited.  In  England  limited  partnerships  have  now  been  authorised 
by  the  Limited  Partnership  Act,  1907  (see  Paktnership,  Vol.  X.  pp. 
456  et  seq.).     The  soci6t6  anonyme  naturally  corresponds  with  our  joint- 


422  SOCIETIES  AND  INSTITUTIONS 

stock  companies,  or  still  more  closely  with  our  chartered  companies,  that 
is  to  say,  companies  whose  shareholders,  by  charter  from  the  Crown,  or 
by  some  special  legislative  enactment,  stand  exempt  from  any  liability 
for  the  debts  of  the  concern  beyond  the  amount  of  their  subscriptions. 

Societies  and   Institutions. — As  to  construction  of 

these  words  in  a  will,  see  In  re  Douglas,  1886,  56  L.  J.  Ch.  913. 

Societies,  Unlawful. — l.  From  the  outbreak  of  the  French 
Ee volution  of  1789  until  after  that  of  1848  it  was  the  policy  of  the 
British  legislature  to  suppress  any  societies  or  combinations  which  were 
regarded  as  having  seditious  or  revolutionary  objects.  This  policy  was 
evidenced  in  a  series  of  Acts.  The  first,  the  Unlawful  Societies  Act, 
1797,  37  Geo.  in.  c.  123,  prohibited  the  administration  or  taking  of  any 
oath  or  like  obligation  or  engagement  purporting  or  intended  to  bind 
the  taker  to  engage  in  any  mutinous  or  seditious  purpose,  or  to  disturb 
the  public  peace,  or  to  be  of  any  association,  society,  or  confederacy 
formed  for  such  purpose.  Contravention  of  the  statute  was  made  felony 
punishable  by  transportation  for  over  seven  years. 

Severer  penalties  were  imposed  in  1812  (52  Geo.  iii.  c.  104)  in  cases 
where  the  oath  bound  to  commit  treason,  murder,  or  any  felony  punish- 
able with  death.  These  were  mitigated  in  1837  (7  Will.  iv.  &  1  Vict. 
c.  91 ;  and  see  54  &  55  Vict.  c.  69,  s.  1). 

In  1799  the  Corresponding  Societies  Act,  now  known  as  the  Unlawful 
Societies  Act,  1799,  39  Geo.  iii.  c.  79,  was  passed,  with  the  object, 
according  to  the  preamble,  of  suppressing  a  traitorous  conspiracy  alleged 
to  be  then  on  foot  between  the  de  facto  Government  of  France  and  bodies 
in  the  British  Isles  to  upset  the  laws,  constitution,  and  government,  and 
all  existing  establishments,  civil  and  ecclesiastical,  and  to  dissolve  the 
Union.  It  enumerates  as  particularly  incriminated,  and  particularly 
suppresses  the  United  Irishmen,  Englishmen,  Scotsmen,  and  Britons, 
and  the  London  Corresponding  Society.  It  further  declares  unlawful 
(s.  2) — (a)  any  society  which  takes  any  oath  forbidden  by  the  Act  of  1797 
(supra) ;  (b)  any  society  whose  members  subscribe  or  assent  to  any  text 
or  declaration  not  required  by  law  nor  authorised  by  justices  or  petty 
sessions,  or  confirmed  at  Quarter  Sessions  (s.  3);  (c)  any  society,  the 
names  of  whose  members  or  any  of  them  are  kept  secret  from  the  society 
at  large.  Freemasons  are  not  within  the  Act  if  properly  certified  and 
registered  with  the  County  Council  (ss.  5-7 ;  51  &  52  Vict.  c.  41,  s.  3). 
Persons  belonging  to  these  prohibited  societies,  or  corresponding,  etc., 
with  them,  are  declared  guilty  of  unlawful  combination  (s.  2). 

Prosecutions  under  these  Acts  may  be  instituted  only  by  the  law 
officer  of  the  Crown  (9  &  10  Vict.  c.  33),  and  are  unknown  in  England 
during  recent  times.  Properly  registered  friendly  societies  are  exempted 
from  the  Acts,  subject  to  certain  precautions  (59  &  60  Vict.  c.  25,  s.  32 ; 
and  see  Teade  Unions). 

Society.  — See  Building  Societies;  Friendly  Societies; 
Industrial  and  Provident  Societies;  Scientific  and  Literary 
Societies;  Loan  Societies. 

Sodomy. — See  Abominable  Crime, 

Soil. — This  word  may  mean  the  surface  of  the  land  only  (as  was 
held  in  Wakefield  v.  Buccleuch,  1866,  L.  R.  4  Eq.  625,  626),  but  unless 


SOLEMNISATION  OF  MAEEIAGE  423 

controlled  by  a  context  it  means  not  the  surface  only,  but  the  subsoil 
as  well. 

Soldier. — A  militiaman  is  a  "soldier"  within  sec.  1  of  the  Poor 
Law  Eemoval  Act,  1846,  and  his  absence  out  of  a  parish  for  the  pur- 
pose of  training  is  therefore  no  break  in  his  residence,  so  as  to  deprive 
him  of  his  status  of  irremovability  by  reason  of  three  years'  residence 
{Korton  Overseers  v.  Leeds,  1855,  25  L.  J.  M.  C.  38).  See  Army  ;  Courts- 
Martial;  Officers. 

Solemnisation  of  Marriage.— The  law  of  England  is 

hostile  to  private  or  clandestine  marriages,  and  does  not  now  recognise 
the  validity  of  marriages  solemnised  in  England  unless  they  have  been 
solemnised  in  one  or  other  of  the  manners  prescribed  or  allowed  by 
statute  law  (see  Marriage,  Vol.  IX.  p.  9). 

The  history  of  the  early  marriage  law  of  England  is  exhaustively 
stated  by  Willes,  J.,  in  Beamish  v.  Beamish,  1861,  9  H.  L.  C.  274;  11 
E.  E.  735. 

The  modes  of  solemnisation  now  recognised  are  various,  according  as 
the  marriage  is — (i.)  by  the  rites  of  the  Church  of  England,  by  the 
practice  and  usages  of  (ii.)  Quakers  and  (iii.)  Jews,  (iv.)  according  to  the 
ceremonies  of  the  Church  of  Eome,  or  any  other  religious  society  or  body 
other  than  those  above  stated,  or  (v.)  purely  civil. 

The  purely  civil  form  is  alternative  to  the  other  forms,  and  is  not  as 
in  France  and  some  other  European  States  essential. 

By  solemnisation  in  this  title  is  meant  going  through  the  ceremonies 
prescribed  or  allowed  for  entering  into  the  contract  or  status  of  marriage. 
In  a  marriage  settlement  the  term  means  a  valid  and  effectual  solemni- 
sation {Chapman  v.  Bradley,  1863,  4  De  G.,  J.  &  S.  71 ;  46  E.  E.  832). 

Avoidance. — Certain  other  provisions  are  peremptory  and  conditions 
precedent  to  validity  of  the  marriage. 

By  sec.  22  of  the  Marriage  Act,  1823,  4  Geo.  iv.  c.  76,  a  marriage 
is  absolutely  null  and  void  if  the  parties  wilfully  and  knowingly  inter- 
marry— 

{a)  In  any  other  place  than  a  church  or  a  public  chapel  where 
banns  may  lawfully  be  published,  unless  by  special  licence  of 
the  Archbishop  of  Canterbury  ; 

(h)  Without  due  publication  of  banns  or  licence  first  obtained  from 

a  person  having  authority  to  grant  the  same ; 

or  knowingly  and  wilfully  consent  to  or  acquiesce  in  the  solemnisation 

of  such  marriage  (by  the  rites  of  the  Church  of  England)  by  any  person 

not  being  in  holy  orders  {Greaves  v.  Greaves,  1872,  L.  E.  2  P.  &  M.  423). 

By  sec.  42  of  the  Marriage  Act,  1836,  a  marriage  is  absolutely  null 
and  void  if  the  parties  knowingly  and  wilfully  intermarry — 

(a)  In  any  place  other  than  the  church,  chapel,  registered  building, 
or  office  or  place  specified  in  the  notice  and  certificate  under 
the  Act ; 

{h)  Without  due  notice  to  the  superintendent  registrar ; 

(c)  Without  certificate  of  notice  duly  issued ; 

{d)  Without  licence  where  a  licence  is  necessary  under  the  Act ; 

{e)  In  a  registered  building  in  the  absence  of  the  registrar ;  or  super- 
intendent registrar,  unless  his  presence  is  rendered  unnecessary 
or  is  dispensed  with  under  the  Marriage  Act,  1898,  61  &  62 
Vict.  c.  58,  s.  15 ; 


424  SOLEMNISATION  OF  MARRIAGE 

(/)  In  a  registrar's  office  in  the  absence  of  the  registrar  or  super- 
intendent registrar. 

Marriage  by  licence  or  before  the  registrar  is  not  avoided  by  the 
wilful  use  of  false  names  {Lane  v.  Goodwin,  1842,  4  Q.  B.  431 ;  Be  Butter, 
[1907]  2  Ch.  592). 

Where  one  of  the  parties  to  the  proposed  marriage  is  a  foreigner 
regard  should  be  had  to  6  Edw.  vii.  c.  40,  s.  2. 

Preliminaries. 

Banjis. — Banns  of  marriage  are  as  matter  of  laio  used  only  for 
marriages  in  the  Church  of  England. 

The  banns  must  be  published  in  an  audible  manner  in  the  parish 
church  or  in  a  public  chapel  in  which  banns  may  lawfully  be  published, 
of  the  parish  or  chapelry  in  which  the  persons  to  be  married  dwell  upon 
three  Sundays  before  the  solemnisation  of  the  marriage  to  which  the 
banns  relate.  If  the  parties  live  in  different  parishes  or  chapelries  the 
banns  must  be  published  in  the  chvirch  or  chapel  of  each. 

A  parish  which  has  no  church  or  chapel  belonging  to  it,  or  none 
where  divine  service  is  usually  solemnised  every  Sunday,  and  extra- 
parochial  places  which  have  no  chapel  in  which  banns  may  lawfully  be 
published,  are  treated  as  belonging  to  any  parish  or  chapelry  next 
adjoining  in  which  banns  may  lawfully  be  published  (1823,  c.  76,  s.  12). 
There  are  also  provisions  for  cases  in  which  the  churches,  etc.,  are 
demolished  or  are  under  repair  (s.  13). 

The  prescribed  time  for  publication  is  immediately  after  the  second 
lesson  in  the  morning  prayer  (s.  2). 

A  marriage  by  banns  must  be  solemnised  within  three  months  after 
complete  publication  of  the  banns  and  in  one  of  the  parish  churches  or 
chapels  in  which  the  banns  were  published  (ss.  2,  9). 

Before  banns  are  published,  the  persons  to  be  married  must  give  the 
minister  a  notice  in  writing  dated  of  the  day  of  delivery  specifying  the 
true  Christian  names  and  surnames  of  the  parties,  their  abodes  within 
the  parishes,  etc.,  and  the  length  of  their  residence  there  (s.  7).  The 
details  given  in  the  notice  are  entered  in  the  banns  book  provided  for 
each  church,  and  the  banns  are  published  from  that  book  (s.  6). 

In  the  case  of  minors  a  publication  of  banns  is  absolutely  avoided  if 
the  person  whose  consent  is  by  law  required  openly  and  publicly  forbids 
the  banns  in  the  church  when  they  are  published  (s.  8);  but  the  clergy 
incur  no  ecclesiastical  or  civil  penalties  by  marrying  minors  after  banns 
without  consent  of  parents  or  guardians  unless  they  have  notice  of 
dissent  (s.  8). 

Certificate  in  Lieu  of  Banns. — By  sees.  1, 36  of  the  Births  and  Deaths 
Registration  Act,  1837,  7  Will.  iv.  c.  22,  notice  to  a  superintendent 
registrar,  in  the  form  prescribed  (1856,  c.  119,  s.  3),  and  the  issue  of  a 
certificate  by  him  are  equivalent  to  the  due  publication  of  banns  where 
no  such  publication  has  taken  place ;  and  marriages  according  to  the 
ceremonies  of  the  Church  of  England  may  be  solemnised  after  such 
notice  and  certificate  in  like  manner  as  if  banns  had  been  duly  pub- 
lished, if  the  church  in  which  the  ceremony  takes  place  is  within  the 
district  of  the  superintendent  registrar  who  issues  the  certificate. 

Notices  of  marriage  must  be  accompanied  by  a  solemn  declaration  of 
no  impediment  of  kindred  or  alliance  or  other  lawful  hindrance,  and,  if 
the  marriage  is  not  to  be  by  licence,  that  the  parties  have  resided  in 


SOLEMNISATION  OF  MAEEIAGE  425 

the  districts  of  the  superintendent  registrar  to  whom  the  notice  is  given 
(1856,  c.  119,  s.  2);  and,  in  case  of  minors,  that  the  consents  required  by 
law  have  been  given. 

The  notices,  original  or  copy,  if  for  marriage  without  licence,  are 
affixed  in  the  superintendent  registrar's  office  for  twenty-one  days  after 
entry  of  the  notice  in  the  marriage  notice-book. 

The  certificate  is  not  issued  until  the  above  conditions  are  complied 
with,  and  authorises  marriage  within  three  months  from  the  date  of  the 
entry  of  the  marriage  notice  (1856,  s.  4). 

A  person  whose  consent  is  required  by  law  to  the  marriage  may 
stop  the  issue  of  the  certificate  by  making  in  the  marriage  notice-book 
the  entry  "  forbidden,"  or  by  entering  a  caveat  against  the  issue  of  the 
certificate  (1836,  c.  85,  ss.  9,  13).  The  registrar-general  may  overrule 
the  caveat  if  frivolous  (s.  13),  and  the  person  entering  the  caveat  may 
render  himself  liable  to  an  action  (s.  37;  1837,  c.  22,  s.  5). 

Licences. — Four  forms  of  licence  are  issued  to  authorise  marriage — 

1.  A  special  licence  issued  by  the  Archbishop  of  Canterbury  and  his 
proper  officers  authorising  marriage  at  any  convenient  time  or  place. 
The  power  to  issue  these  licences  is  given  by  25  Hen.  viii.  c.  21,  and 
preserved  by  the  Marriage  Act,  1823,  4  Geo.  iv.  c.  76,  s.  20.  See  Licence, 
Marriage,  Vol.  VIII.  p.  162. 

2.  A  licence  from  the  ordinary,  i.e.  the  bishop  of  the  diocese,  or  a 
Surrogate,  or  other  person  having  authority  to  grant  such  licences 
(see  Canons  of  1603,  No.  101 ;  1823,  c.  76,  s.  18). 

This  licence  can  be  issued  only  for  marriage  in  the  parish  church  or 
chapel  of  a  parish  or  chapelry  (in  the  diocese)  within  which  one  of  the 
parties  has  had  his  usual  place  of  abode  for  fifteen  days  immediately 
iaefore  the  grant  of  the  licence  (1823,  s.  10).  Before  it  is  granted  one 
of  the  parties  must  personally  swear  before  the  surrogate  {a)  as  to 
residence,  (h)  as  to  absence  of  impediment,  (c)  if  either  party  is  a 
minor,  that  the  consent  of  the  person,  if  any,  whose  consent  is  required 
has  been  given  (s.  14). 

The  oath  against  impediment  by  precontract  or  suit  commenced  in 
any  ecclesiastical  Court  required  by  Canon  103  has  by  the  Act  of  1823 
been  for  civil  purposes  abolished. 

The  licence  lapses  if  marriage  is  not  celebrated  within  three  months 
of  the  grant  (s.  19). 

The  surrogate  seems  to  be  entitled  to  administer  an  oath  {R.  v. 
Chapman,  1849,  1  Den.  432);  but  that  false  swearing  before  him  is  not 
perjury,  but  is  a  misdemeanor  {ibid.). 

Issue  of  the  licence  may  be  stopped  by  caveat,  which  holds  good 
unless  overruled  by  the  ecclesiastical  Court  (s.  17). 

It  is  the  practice  in  many  dioceses  to  refuse  licences  for  the  remar- 
riage of  a  person  divorced  by  decree  of  a  civil  Court,  during  the  lifetime 
of  the  other  party  to  the  dissolved  marriage.  See  Licence,  Marriage, 
Vol.  VIIL  p.  162. 

3.  Licence  from  a  Superintendent  Registrar  of  Marriages. — The  pro- 
cedure for  obtaining  this  form  of  licence  is  the  same  as  for  obtaining  a 
certificate  in  lieu  of  banns.  The  form  is  prescribed  by  sec.  10  of  the  Act 
of  1856.  Such  licence  authorises  marriage  in  a  registered  building  in 
the  presence  (1836,  c.  85,  s.  20)  or  before  an  authorised  person  without 
the  presence  of  the  registrar  (1898,  c.  58,  s.  4),  or  in  a  church  or  chapel 
of  the  Church  of  England  (1856,  c.  119,  s.  10).  But  in  every  case  the 
consent  of  the  minister  is  necessary,  and  in  the  latter  case  the  solemnisa- 


426  SOLEMNISATION  OF  MARKIAGE 

tion  must  be  by  a  duly  qualified  clergyman  and  by  the  ceremonies  of 
the  church  (1856,  c.  119,  s.  10). 

Where  the  parties  live  in  different  districts  notice  to  the  super- 
intendent registrar  of  one  district  is  sufficient  (1856,  c.  119,  s.  6).  The 
notice  of  application  need  not  be  exhibited  in  the  registrar's  office  (s.  5). 

A  caveat  may  be  entered  by  a  person  whose  consent  is  required  by 
law  to  the  marriage,  as  in  the  case  of  a  certificate,  and  subject  to  the 
same  powers  of  disallowance  and  consequent  liabilities  {ante,  p.  425). 

The  marriage  may  be  solemnised  within,  but  not  later  than,  three 
months  after  grant  of  the  licence. 

A  certificate  in  the  same  form  as  that  stated  above  under  certificate 
is  issued  with  the  licence. 

Consents. — Certain  consents  are  required  as  preliminary  to  the  actual 
solemnisation  of  marriage  in  the  case  of  minors  (persons  under  twenty- 
one),  under  whatever  form  the  marriage  is  to  be  celebrated.  The  lack 
of  these  consents  does  not  invalidate  the  marriage  itself  (H.  v.  Birmingham, 
1828,  8  B.  &  C.  29). 

The  consents  are  not  required  if  the  minor  is  a  widow  or  widower. 
In  other  cases  the  consent  necessary  is  that  of  the  father,  if  living,  or, 
if  he  be  dead,  that  of  the  guardians  or  guardian,  if  lawfully  appointed, 
and  if  there  be  no  guardian,  that  of  the  mother  if  unmarried  (i.e.  a 
widow).  If  the  mother  be  not  unmarried  then  the  consenting  persons 
are  the  guardian  or  guardians,  if  any,  appointed  by  the  High  Court 
(1823,  s.  15). 

In  the  case  of  an  illegitimate  minor,  unless  a  guardian  has  been 
appointed,  there  is  no  one  who  can  give  the  consent  required,  therefore 
such  a  minor  may  enter  into  marriage  without  the  consent  of  his  or  her 
natural  parents  (Priestly  v.  Hughes,  1809,  11  East,  1). 

If  the  father  or  the  guardians  or  mother  are  non  compotes  mentis,  or 
in  parts  beyond  the  seas,  or  unreasonably  or  from  undue  motives  with- 
hold consent,  the  minor  may  obtain  the  consent  of  the  Lord  Chancellor 
or  Master  of  the  Eolls  (1823,  s.  16 ;  Ux  parte  s.c.,  3  My.  &  Cr.  471 ;  £x 
parte  Beihey,  1843,  12  L.  J.  Ch.  436). 

In  the  case  of  minors  the  mode  of  forbidding  the  marriage  is,  (a)  in 
the  case  of  banns,  by  publicly  intervening  in  the  church  in  which  they 
are  published,  or  by  notice  to  the  minister  of  dissent  (1823,  c.  76,  s.  8) ; 
(h)  in  the  case  of  marriage  by  ecclesiastical  licence,  by  entering  a  caveat, 
under  sec.  17  of  the  Act  of  1823,  which  obstructs  the  issue  of  the  licence 
until  removed  by  the  ecclesiastical  judge,  the  bishop,  or  chancellor; 
(c)  in  the  case  of  marriage  by  certificate,  or  certificate  and  licence  of 
the  registrar,  by  writing  "  forbidden  "  in  the  marriage  notice-book  before 
the  certificate  also  is  issued  (1836,  c.  85,  s.  9). 

Marriage  under  the  Foreign  Marriage  Act,  1892,  is  forbidden  by 
caveat  lodged  with  the  marriage  officer  (55  &  56  Vict.  c.  23,  ss.  4,  5). 

For  the  effects  on  property  acquired  through  a  marriage  with  a 
minor  obtained  without  the  necessary  consents  and  through  false  oath, 
or  fraud,  see  Infants  ;  see  the  Marriage  Act,  1823,  4  Geo.  iv.  c.  76,  ss. 
23,  24,  25.  The  Marriage  and  Registration  Act,  1856,  19  &  20  Vict.  c. 
119,  s.  19,  which  makes  it  lawful  for  the  Attorney-General  or  Solicitor- 
General  to  sue  for  a  forfeiture  of  all  the  estate  and  interest  in  any 
property  accruing  to  the  offending  party  by  such  marriage.  The  earlier 
Act  relates  to  Church  of  England  marriages ;  the  later  to  marriages  by 
other  forms  (see  Infants,  Vol.  VII.  p.  171).  Proceedings  must,  as  a 
general  rule,  be  taken  within  a  year  of  the  marriage  (1823,  s.  25). 


SOLEMNISATION  OF  MAEKIAGE  427 

Place. — The  place  must  be  a  church  or  public  chapel  wherein  banns 
may  be  lawfully  published,  unless  a  special  licence  is  obtained  from  the 
Archbishop  of  Canterbury. 

Where  the  church  or  chapel  of  a  parish  or  chapelry  is  demolished  in 
order  to  be  rebuilt,  or  is  under  repair,  the  marriage  may  be  celebrated 
in  the  church  or  chapel  of  any  adjoining  parish  or  chapelry,  where 
banns  may  be  lawfully  proclaimed  as  authorised  by  the  Marriage  Act, 
1823  ;  or  in  any  place,  within  the  limits  of  the  parish  or  chapelry  whose 
church  or  chapel  is  demolished  or  repaired,  which  is  licensed  for  the 
performance  of  divine  service ;  or  in  any  such  place  of  the  adjoining 
parish  or  chapelry  where  banns  may  be  lawfully  proclaimed.  These 
provisions  apply  whether  the  marriage  is  solemnised  after  publication 
of  banns  or  under  licence  (Act  of  1823,  c.  76 ;  Act  of  1824,  c.  32). 

In  regard  to  the  solemnisation  of  marriages  in  churches  of  district, 
or  new,  parishes,  and  ecclesiastical  districts,  these  churches  are  to  be 
considered  as  the  parish  churches  of  persons  resident  within  these 
limits;  and  the  incumbent  of  the  ancient  or  mother  parish  cannot 
lawfully  marry  parties  unless  one  or  both  are  his  parishioners  living 
within  the  limits  still  attached  to  the  mother  church  for  ecclesiastical 
purposes  (Hammick,  Marriage  Laiu  of  England,  pp.  94,  95). 

In  Wing  v.  Taylor,  1861,  2  Sw.  &  T.  278,  it  was  held  that  non- 
compliance with  the  above  rules  as  to  place  renders  the  marriage  void. 

A  marriage  under  licence  of  the  superintendent  registrar  may  not 
be  solemnised  in  a  church  or  chapel  of  the  Church  of  England  without 
the  consent  of  the  minister  thereof,  nor  by  other  than  a  duly  qualified 
clergyman,  or  with  any  other  forms  or  ceremonies  than  those  of  the  said 
Church  (1856,  c.  119,  s.  11). 

Jews  and  Quakers. — There  is  no  statutory  direction  as  to  the  place 
of  celebration  of  Jewish  or  Quaker  marriages,  but  it  need  not  be  in  the 
district  in  which  the  parties  to  the  marriage  or  either  of  them  dwell 
(3  &  4  Vict.  c.  72,  8,  5). 

The  celebration  of  these  marriages  is  controlled  by  the  necessity  of 
a  licence  or  certificate  from  the  proper  civil  registrar,  the  need  of  regis- 
tration of  the  marriage,  and  the  conditions  under  which  proper  marriage 
and  register  books  are  issued  to  the  secretaries  of  synagogues  (6  &  7 
Will.  IV.  c.  86,  s.  30;  19  &  20  Vict.  c.  119,  s.  29),  and  the  registering 
officer  certified  by  the  recording  clerk  of  the  Society  of  Eriends  (6  &  7 
Will.  IV.  c.  86,  8.  30). 

Non-Anglican  Marriage. — A  marriage  by  the  ceremonies  of  any 
religious  body  other  than  the  Church  of  England,  the  Society  of  Friends, 
or  the  Jewish  community,  must  be  celebrated  in  the  building  specified 
in  the  notice  of  marriage,  which  must  be  a  building  registered  for 
solemnising  marriages  (6  &  7  Will.  iv.  c.  85,  ss.  18,  20;  7  Will.  iv.  & 
1  Vict.  c.  22,  s.  35,  Koman  Catholics;  18  k  19  Vict.  c.  81 ;  61  &  62 
Vict.  c.  58,  ss.  1,  4).  The  celebration  must  be  with  open  doors  (6  &  7 
Will.  IV.  c.  85,  8.  20). 

Civil  Marriage. — A  purely  civil  marriage  must  be  celebrated  at  the 
office  of  the  superintendent  registrar  of  the  district,  and  with  open 
doors  (6  &  7  Will.  iv.  c.  85,  s.  21 ;  19  &  20  Vict,  c.  119,  s.  12). 

The  above  provisions  as  to  open  doors  are  directory,  and  compliance 
therewith  is  not  a  condition  precedent  to  the  validity  of  the  marriage 
{Camplell  v.  Corley,  1856,  4  W.  R.  695 ;  28  L.  T.  0.  S.  109). 

Time. — The  times  during  which  marriages  might  lawfully  be  celebrated 
were  fixed  in  1753  by  Lord  Hardwicke's  Act,  26  Geo.  ii.  c.  33,  as  between 


428  SOLEMNISATION  OF  MAERIAGE 

the  hours  of  eight  and  twelve  in  the  forenoon,  known  as  "  the  canonical 
hours,"  from  being  the  hours  fixed  by  the  canons  of  1603.  This  regula- 
tion was  continued  by  the  Marriage  Acts,  1823,  4  Geo.  iv.  c.  76,  s.  21 ; 
1836,  5  &  6  Will.  IV.  c.  85,  ss.  20,  21;  and  1898,  61  &  62  Vict.  c.  58. 
The  Marriage  Act,  1886,  49  Vict.  c.  14,  enacted  (s.  1)  that  it  should  be 
lawful  to  solemnise  a  marriage  at  any  time  between  the  hours  of  eight 
in  the  forenoon  and  three  in  the  afternoon. 

The  hours  as  fixed  in  1886  apply  to  all  marriages  in  England  except 
those  under  special  licence  of  the  Archbishop  of  Canterbury,  and  the 
marriages  of  Jews  and  Quakers  (4  Geo.  iv.  c.  76,  s.  31 ;  6  &  7  Will.  iv. 
c.  85,  8.  2). 

There  is  no  legal  prohibition  as  to  the  seasons  or  days  during  which 
marriages  may  be  celebrated ;  though  there  are  some  seasons,  as  those 
of  the  fasts,  during  which  the  celebration  of  marriages  is  discounten- 
anced by  the  canons  or  usages  of  the  Church  of  England  and  other 
religious  communities  (Phillimore,  Ecd.  Law,  2nd  ed.,  vol.  i.  p.  629), 

The  rule  as  to  the  hour  between  which  a  marriage  is  to  be  celebrated 
in  England  is  directory,  and  celebration  at  other  hours  does  not  invali- 
date the  marriage  (Catterall  v.  Sweetman,  1845,  1  Eob.  Eccl.  304);  but 
exposes  the  officiant  to  penalties.  The  rule  above  stated,  it  would  seem, 
applies  irrespective  of  the  form  of  solemnisation  used,  whether  Anglican, 
civil,  or  Nonconformist. 

Witnesses. — All  marriages  in  England  are  to  be  solemnised  in  the 
presence  of  two  or  more  credible  witnesses,  besides  the  civil  or  religious 
officiant.  This  is  enacted,  as  to  Church  of  England  marriages,  by  4  Geo.  iv. 
c.  76,  s.  23 ;  as  to  marriages  in  registered  buildings,  by  6  &  7  Will.  iv.  c.  85, 
s.  20 ;  and  as  to  registry  offices,  by  sec.  21  of  the  same  Act. 

In  each  case  two  witnesses  at  least  are  required  to  sign  the  marriage 
register  (1823,  s.  31 ;  1836,  s.  23). 

The  rule  as  to  the  presence  of  two  witnesses  is  directory  only  ( Wing 
V.  Taylor,  1861,  2  Sw.  &  Tr.  278),  and  non-observance  does  not  render 
the  marriage  void  or  voidable. 

LangiLage. — Except  in  the  case  of  marriage  by  Anglican  rites  in 
England,  there  is  no  necessity  for  the  religious  ceremony  to  be  in  the 
English  language,  so  long  as  the  ceremony  includes  the  declarations,  etc., 
required  by  the  Act  of  1836,  s.  20,  or  the  Act  of  1898,  s.  4.  There  seems 
to  be  no  objection  to  the  use  of  Welsh  in  marriages  according  to  the 
ceremonies  of  the  Established  Church  in  Wales  or  Monmouthshire. 
And  special  provision  is  made  for  the  translation  into  Welsh  of 
the  declarations,  etc.,  prescribed  for  use  in  the  case  of  civil  and  non- 
conformist marriages  in  places  where  the  Welsh  tongue  is  commonly 
used  or  preferred  (1837,  c.  22,  s.  23 ;  1898,  c.  58,  s.  14). 

Ceremonies — Church  of  England. — At  common  law  the  presence  of 
a  clergyman  in  holy  orders  is  necessary  to  constitute  a  valid  marriage 
{R  V.  Millis,  10  CI.  &  F.  534;  8  E.  E.  844).  This  rule  still  applies  to 
marriages  on  a  British  ship  on  the  high  seas.  A  clergyman  cannot 
officiate  at  his  own  wedding  {Beamish  v.  Beamish,  1861,  9  H.  L.  C.  274; 
11  E.  E.  735,  where  the  history  of  the  older  forms  of  ecclesiastical 
marriage  ceremonies  is  described). 

The  rules  are  prescribed  by  the  rubrics  to  the  marriage  service  in 
the  Book  of  Common  Prayer,  and  are  to  be  followed,  and  are  to  be 
observed  by  every  person  in  holy  orders  of  the  Church  of  England. 

The  rubrics  relate  to  marriage  by  banns  only  (1836,  c.  85,  s.  1 ; 
Beamish  v  Beamish,  1861,  9  H.  L.  C.  330). 


SOLEMNISATION  OF  MAREIAGE  429 

Before  commencing  the  service  it  is  the  duty  of  the  minister  to  see 
the  special  licence,  licence  certificate,  of  banns,  or  the  registrar's  certifi- 
cate, or  licence  and  certificate,  showing  that  the  necessary  preliminaries 
have  been  observed. 

The  rubric  directs  that  the  persons  to  be  married  shall  at  the  day 
and  time  appointed  for  solemnisation  of  marriage  come  into  the  Ijody 
of  the  church  with  their  friends  and  neighbours,  and  there  standing 
together,  the  man  on  the  right  hand  and  the  woman  on  the  left,  the 
priest  shall  say,  etc. — whereupon  the  office  begins. 

A  charge  first  to  the  people,  and  then  to  the  parties  about  to  be 
married,  is  made  by  the  priest  for  the  disclosure  and  declaration  of  all 
legal  impediments  to  the  marriage.  If  any  impediment  is  declared  it  is 
prescribed  that  the  solemnisation  must  be  deferred  until  such  time  as 
the  truth  be  tried ;  but  the  person  making  the  objection  may  be  bound 
with  sufficient  sureties  to  the  parties  for  the  value  of  such  charges  as 
they  may  sustain  to  prove  the  allegation. 

The  "  espousal "  then  follows,  and  is  the  remains  of  the  old  form  of 
espousal  {sponsalia,  dppafSwv),  which  was  a  consent  to  a  future  marriage, 
and  is  expressed  in  the  future  tense;  as  the  plighting  of  the  troth  is 
a  mutual  stipulation  and  contract  forming  the  most  essential  part  of 
the  ceremony. 

In  Beamish  v.  Beamish,  supra,  at  p.  329,  the  question  is  discussed  at 
what  part  of  the  service  the  marriage  is  knit  for  civil  purposes,  and  the 
answer  is  given  in  the  words  of  the  39th  section  of  Littleton,  "  After 
affiance  and  troth  plighted  between  them."  "  The  subsequent  giving  of 
the  ring,  and  joining  of  hands,  and  publication  of  the  fact  of  marriage 
by  the  minister  are  in  their  nature,  and  are  stated  to  be,  symbolical  and 
declaratory  of  a  marriage  which  has  already  taken  place  by  the  consent 
of  the  parties.  The  blessing  is  of  persons  who  have  already  consented 
together  in  wedlock,  and  anciently,  as  well  in  England  as  abroad,  the 
nuptial  benediction  was  given  only  at  a  first  marriage.  The  rest  of  the 
service  consists  of  thanksgiving,  exhortation,  and  prayer  "  (Willes,  J.). 

The  actual  repetition  of  the  words  of  the  service  has  never  been  held 
to  be  necessary  {Harrod  v.  Harrod,  1854,  1  K.  &  J.  4 ;  69  E.  K.  344,  a 
case  of  a  marriage  of  a  deaf  and  dumb  woman  who  did  not  know  the 
deaf  and  dumb  alphabet,  but  was  proved  to  have  understood  the 
nature  of  the  contract  into  which  she  was  entering).  If  the  ceremonies 
required  by  the  law,  such  as  the  publication  of  banns  and  the  like,  have 
been  complied  with,  when  the  hands  of  the  parties  are  joined  together 
and  the  clergyman  pronounces  them  to  be  man  and  wife,  if  they  under- 
stand that  by  that  act  they  have  agreed  to  cohabit  together  and  with  no 
other  person,  they  are  married. 

The  want  of  a  person  to  give  away  the  bride  is  not  visited  by  the 
rubric,  or  by  the  general  law,  with  any  consequences  {Beamish  v.  Beamish, 
9  H.  L.  C.  331). 

Quakers. — The  Marriage  Act,  1823,  4  Geo.  iv.  c.  76,  did  not  affect 
marriages  between  members  of  the  Society  of  Friends,  commonly  called 
Quakers  (s.  31).  Such  persons  may  contract  and  solemnise  marriage 
according  to  the  usages  of  the  Society  (6  &  7  Will.  iv.  c.  85,  s.  2). 
Certain  doubts  as  to  such  marriages  solemnised  in  England  before 
July  1,  1837,  and  in  Ireland  before  April  1,  1845,  were  removed  in 
1847  (10  &  11  Vict.  c.  58). 

Before  the  marriage  can  be  solemnised  it  is  necessary  to  give  to  the 
registrar  of  marriages  for  the  district  the  notice  prescribed  by  sec.  4  of 


430  SOLEMNISATION  OF  MAKRIAGE 

the  Act  of  1836,  and  sec.  3  of  the  Act  of  1856,  accompanied  by  a  solemn 
declaration,  under  sec.  2  of  the  Act  of  1856,  that  there  is  no  lawful 
impediment ;  and  to  obtain  the  issue  of  a  certificate  by  the  registrar, 
under  sec.  8  of  the  Act  of  1836,  or  a  licence  by  the  registrar,  under 
sec.  21  of  the  Act  of  1856;  and  to  deliver  the  certificate  or  licence 
to  the  registering  officer  of  the  Society  (1836,  s.  16). 

The  provisions  of  the  Act  of  1836,  as  to  marriage  according  to  the 
usages  of  the  Society  of  Friends,  were  extended  in  1860  to  marriages 
where  only  one  party  belongs  to  the  Society  (23  &  24  Vict.  c.  18),  or 
neither  party  so  belongs  (see  35  &  36  Vict.  c.  10). 

In  cases  where  one  party  only,  or  neither  party,  belongs  to  the 
Society,  and  on  giving  notice  of  the  intended  marriage,  a  certificate 
must  be  produced  from  the  registering  officer  of  the  Society  that  the 
party  on  whose  behalf  the  notice  of  marriage  is  given  is  duly  authorised 
to  proceed  to  the  accomplishment  of  the  marriage  according  to  the  usages 
of  the  Society.  But  production  of  the  register  of  marriage  is  conclusive 
that  the  required  certificate  has  been  given. 

These  Acts  do  not  debar  Quakers  from  using  any  other  form  of 
solemnising  marriage  recognised  by  law. 

The  impediments  to  marriage,  and  the  consents  needed  by  law  to 
marriage,  are  the  same  for  Quakers  as  for  others. 

Quakers  are  excepted  from  the  Marriage  Act,  1898,  s.  13. 

The  building  in  which  the  marriage  is  celebrated  need  not  be  within 
a  district  in  which  the  parties  or  either  of  them  reside  (1840,  c.  72,  s.  5). 

Jews. — ^Where  both  parties  to  a  marriage  profess  the  Jewish  religion, 
the  marriage  may  lawfully  be  contracted  and  solemnised  according  to 
the  usages  of  that  religion  subject  to  the  giving  of  the  notices  and 
obtaining  and  delivering  to  the  officer  of  the  synagogue  by  whom  the 
marriage  is  to  be  registered,  the  certificate  or  licence  from  the  registrar 
required  by  the  Acts  of  1836  and  1856  (6  &  7  Will.  iv.  c.  85,  ss.  4,  8, 16; 
19  &  20  Vict.  c.  119,  ss.  3,  4,  21).  The  building  in  which  the  marriage 
is  celebrated  need  not  be  within  a  district  in  which  the  parties  or  either 
of  them  reside  (1840,  c.  72,  s.  5).  The  Registrar-General  is  required  to 
furnish  marriage  register  books  and  forms  to  each  certified  secretary  of 
a  synagogue  of  British  Jews  (1836,  c.  86,  s.  30). 

The  privileges  of  persons  professing  the  Jewish  religion  as  to  celebra- 
tion of  marriage  are,  with  certain  exceptions,  independent  of  the  pro- 
visions of  the  Marriage  Acts,  1811-1886  and  1898.  They  are  specifically 
excepted  from  the  Marriage  Acts,  1823  (4  Geo.  iv.  c.  76,  s.  31),  and  1898 
(61  &  62  Vict.  c.  58,  s.  13).  But  the  impediments  to  lawful  marriage 
under  English  law  apply  to  Jewish  marriages  {Be  Wilton,  [1900]  2  Ch. 

481). 

Certain  doubts  as  to  the  validity  of  Jewish  marriages  solemnised  in 
England  before  July  1,  1837,  and  in  Ireland  before  April  1,  1845,  were 
removed  in  1847  (10  &  11  Vict.  c.  58). 

Non-Anglican. — Until  1836  the  only  forms  of  marriage  in  England 
recognised  by  English  law  were  by  the  ceremonies  of  the  Established 
Church,  or  the  usages  of  Jews  and  Quakers. 

Under  the  Marriage  Act,  1836,  6  &  7  Will.  iv.  c.  85,  the  proprietors 
or  trustees  of  a  separate  building  (see  7  Will.  iv.  &  1  Vict.  c.  22,  s.  34 ; 
61  &  62  Vict.  c.  58,  s.  1),  certified  according  to  law  as  a  place  of  religious 
worship,  may  procure  its  registration  for  solemnising  marriages  therein 
from  the  superintendent  registrar  of  marriages  for  the  district  in  which 
it   is  situate  (1836,  s.  18).      If   the   congregation   there  worshipping 


SOLEMNISATION  OF  MARRIAGE  431 

removes  to  a  new  building,  the  registrar  may  at  once  register  the  new 
in  the  place  of  the  disused  building  (s.  19). 

The  enactments  providing  for  the  certification  or  registration  of  such 
buildings  at  present  in  force  are  18  &  19  Vict.  c.  81 ;  19  &  20  Vict, 
c.  119,  s.  24.  They  extend  not  only  to  Protestant  dissenters  and  other 
Protestants,  but  to  Roman  Catholics,  Jews,  and  to  places  of  meeting  for 
religious  worship  of  any  other  body  or  denomination  of  persons  not 
necessarily  Christians.  In  the  case  of  Roman  Catholic  registered 
buildings  the  expression  trustees  or  governing  body  includes  the  bishop 
or  vicar-general  of  the  diocese  (1898,  c.  58,  s.  1).  In  such  registered 
buildings  marriages  may  be  solemnised  according  to  such  form  and 
ceremony  as  the  parties  to  the  marriage  see  fit  to  adopt,  subject  to  the 
following  regulations : — 

(a)  The  marriage  must  be  solemnised  with  open  doors. 

(b)  It  must  be  solemnised  between  8  a.m.  and  3  p.m.  (1836,  s.  20; 

1886,  c.  14,  s.  1). 

(c)  It  must  be  solemnised  in  the  presence  of  a  civil  registrar  of  the 

district  in  which  the  building  is  situate  (1836,  s.  20),  unless  his 
attendance  is  dispensed  with  under  the  Marriage  Act,  1898. 

(d)  If  celebrated  under  the  Marriage  Act,  1898,  it  must  be  solemnised 

in  the  presence  of  a  person  certified  as  having  been  duly 
authorised  for  the  purpose  by  the  trustees  or  other  governing 
body  of  the  building,  or  of  some  other  registered  building  in 
the  same  district  (1898,  c.  58,  ss.  4,  6). 

(e)  In  some  part  of  the  service,  whether  the  registrar's  attendance  is 

necessary  or  is  dispensed  with,  the  contracting  parties  must 

make  the  following  declarations : — "  I  do  solemnly  declare  that 

I  know  not  of  any  lawful  impediment  why  I,  A.  B.,  may  not 

be  joined  in  matrimony  to  C.  D."     And  each  of  the  parties 

must  say  to  the  other  the  words  following : — "  I  call  upon  these 

persons  here  present  to  witness  that  I,  A.  B.,  do  take  thee, 

C.  D.,  to  be  my  lawful  wedded  wife  [or  husband]  "  (1836,  s.  20) ; 

or,  in  the  case  of  a  marriage  under  the  Act  of  1898,  "I,  A.  B., 

do  take  thee,  C.  D.,  to  be  my  wedded  wife  [or  husband]  "  (1898, 

c.  58,  s.  6  (1)). 

Before  the  solemnisation  it  is  necessary  to  produce  a  certificate  or 

certificate  and  licence  from  the  registrar  under  the  Act  of  1836,  or  Acts 

amending  the  same,  and  the  notice  on  which  these  were  issued,  naming 

the  building  as  that  in  which  the  marriage  is  to  take  place  (1836,  s.  20 ; 

1898,  s.  4). 

The  marriage  may  not  be  solemnised  before  the  expiration  of  twenty- 
one  days  from  the  date  or  entry  of  the  notice  of  marriage  in  the  marriage 
notice-book,  unless  the  marriage  is  on  the  registrar's  licence,  in  which 
case  one  day  suffices  (1836,  s.  20;  1856,  s.  9);  nor  after  the  expiration 
of  three  months  from  the  entry  of  the  notice  (1836,  s.  15 ;  1856,  s.  9). 

Where  the  marriage  has  been  solemnised  under  the  authority  of  the 
Marriage  Acts,  1856  to  1886,  it  is  not  necessary  to  establish  its  validity 
by  proving  the  actual  dwelling  or  period  of  dwelling  of  the  parties,  or 
the  giving  of  the  consents  required  by  law,  or  that  the  building  was 
registered  as  the  usual  place  of  worship  of  the  parties  (1856,  s.  17). 

Civil  Marriages. — By  the  Marriage  Act,  1836,  persons  who  object  to 
marry  in  a  registered  building  {vide  supra)  may,  after  the  notice  and 
certificate,  or  certificate  and  licence,  contract  and  solemnise  marriage  at 
the  office  and  in  the  presence  of  the  superintendent  registrar  of  marriages, 


432  SOLEMNISATION  OF  MAERIAGE 

and  some  registrar  of  the  district,  and  in  the  presence  of  two  witnesses, 
with  open  doors,  and  between  8  a.m.  and  3  p.m. 

In  the  presence  of  the  registrar  and  the  witnesses  each  of  the 
parties  shall  declare :  "I  do  solemnly  declare  that  I  know  not  of  any 
lawful  impediment  why  I,  A.  B.,  may  not  be  joined  in  matrimony  to 
C.  D."  And  each  of  the  parties  shall  say  to  the  other,  "  I  call  upon 
these  persons  here  present  to  witness  that  I,  A.  B.,  do  take  thee,  C.  I)., 
to  be  my  lawful  wedded  wife  [or  husband]"  (1836,  ss.  20,  21).  No 
marriage  is  to  be  solemnised  with  any  religious  service  in  a  registrar's 
office  (1856,  c.  119,  s.  12).  The  provision  as  to  open  doors  is  directory 
{Campbell  v.  Corley,  1856,  4  W.  R.  695). 

The  registrar's  fee  is  10s.  if  the  marriage  is  by  licence,  and  5s.  if 
otherwise  than  by  licence  (1836,  s.  22). 

As  to  registration,  see  post,  434. 

Marriages  solemnised  by  these  forms  are  good  and  cognisable  in  the 
same  manner  as  marriages  according  to  the  rites  of  the  Church  of 
England  were  before  the  passing  of  the  Act  of  1836  (1856,  c.  119,  s.  23). 

When  once  the  marriage  has  been  solemnised  it  is  not  necessary 
for  establishing  the  validity  of  the  marriage  to  prove  the  actual  dwelling 
or  period  of  dwelling  of  the  parties,  or  that  consents  required  by  law 
have  been  given  (1856,  s.  17). 

S^iperadding  Religious  Ceremony  to  Civil  Marriage. — After  a  marriage 
already  contracted  at  a  registry  office  under  the  Marriage  Acts,  1836, 
1837,  and  1840,  or  1856,  the  parties  may,  if  they  desire  to  add  the 
religious  ceremony  ordained  or  used  by  the  Church  or  persuasion  of 
which  the  parties  are  members,  to  the  marriage  so  contracted,  may 
present  themselves  for  that  purpose  to  a  clergyman  or  member  of  such 
Church  or  persuasion  after  notice  to  him.  On  production  of  the  registrar's 
certificate  and  payment  of  the  customary  fees,  if  any,  the  clergyman  or 
minister  may,  if  he  thinks  fit,  read  or  celebrate  the  service  of  the  per- 
suasion. The  section  does  not  authorise  any  person  not  in  holy  orders 
of  the  Church  of  England  to  officiate  in  any  church  or  chapel  of  that 
Church.  The  superadded  ceremony  does  not  supersede  or  validate  the 
civil  marriage,  and  the  reading  or  celebration  is  not  to  be  registered  as 
a  marriage  (1856,  c.  119,  s.  12). 

Marriages  by  British  Forms  Outside  England. — See  Makriage,  Vol. 
IX.  pp.  19-22. 

Offences  with  Respect  to  Solemnisation. — It  is  felony  for  any  person 
falsely  pretending  to  be  in  holy  orders  knowingly  and  wilfully  to 
solemnise  matrimony  according  to  the  rites  of  the  Church  of  England.' 
The  punishment  is  penal  servitude,  three  to  fourteen  years,  or  imprison- 
ment with  or  without  hard  labour  for  not  over  two  years.  Prosecution 
must  be  within  three  years  of  the  commission  of  the  offence  (4  Geo.  IV. 
c.  76,  s.  21 ;  54  &  55  Vict.  c.  69,  s.  1 ;  see  R.  v.  Ellis,  1881,  16  Cox,  469. 
By  sec.  39  of  the  Act  of  1836  every  person  is  guilty  of  felony  who  .  .  . 
shall  knowingly  and  wilfully  solemnise  any  marriage  in  England  (except 
by  special  licence  of  the  Archbishop  of  Canterbury) — 

{a)  In  any  other  place  than  a  church  or  chapel  in  which  marriages 
may  be  solemnised  according  to  the  rites  of  the  Church  of 
England;  or 

(&)  In  any  other  place  than  the  registered  building  specified  in  the 
notice  to  and  certificate  or  certificate  and  licence  of  the 
registrar ; 

(c)  In  any  other  place  than  the  registrar's  office  specified  in  such 
notice  and  certificate  or  licence ; 


SOLEMNISATION  OF  MAEEIAGE  433 

(d)  In  such  registered  building  or  office   in  the   absence  of  the 

registrar  of  the  district  in  which  the  building  or  office  is 

situate,  unless   his   presence  is  rendered   unnecessary  or  is 

dispensed  with  in  the  case  of  a  marriage  authorised  by  and 

solemnised  under  the  Marriage  Act,  1898,  61  &  62  Vict.  c.  58, 

s.  15.     The  punishment  of  this  felon}'-  is  regulated  by  7  »&;  8 

Geo.  IV.  c.  28,  s.  8. 

By  sec.  21  of  the  Marriage  Act,  1823,  as  amended  in  1886  (49  &  50 

Vict.  c.  14),  every  person  is  guilty  of  felony  who  shall  knowingly  and 

wilfully  solemnise  a  marriage  in  England — 

(a)  Except  by  special  licence  from  the  Archbishop  of  Canterbury — 
(i.)  In  any  place  other  than  a  church  or  chapel  in  which 

banns  may  lawfully  be  published : 
(ii.)  At  any  other  time  than  between  8  a.m.  and  3  p.m.  ; 
(&)  Without  due  publication  of  banns  unless  licence  of  marriage  be 
first  had  and  obtained  from  a  person  having  authority  to  grant 
the  same,  i.e.  the  ordinary,  or  a  surrogate  (1823,  s.  14),  or  the 
registrar  (1836,  s.  11). 
The   punishment   is  penal  servitude,  three   to   fourteen   years,  or 
imprisonment  with  or  without  hard  labour  for  not  over  two  years. 

Prosecutions  for  the  above  felonies  must  be  instituted  within  three 
years  of  the  offence  (1823,  s.  21 ;  1836,  s.  41). 

By  sec.  40  of  the  Marriage  Act,  1836,  as  amended  by  sec.  3  of  the 
Marriage  Act,  1854,  19  &  20  Vict.  c.  119,  s.  9,  it  is  felony  for  a  super- 
intendent registrar  knowingly  and  wilfully — 

(a)  To  issue  a  certificate  or  licence  for  marriage  after  the  expiration 

of  three  months  after  he  has  entered  the  marriage  notice ; 

(b)  To  issue  any  certificate  of  marriage  by  licence  before  the  expira- 

tion of  one  whole  day  after  the  entry  of  the  notice ; 

(c)  To  issue  a  certificate  for  marriage  without  licence  before  the 

expiration  of  twenty-one  days  after  the  entry  of  the  notice ; 

(d)  To  issue  any  certificate  the  issue  whereof  has  been  forbidden  by 

a  person  authorised  to  forbid  its  issue ; 

(e)  To  solemnise  oi-  permit  to  be  solemnised  in  his  office,  or  to  register 

any  marriage  declared  by  the  Act  of  1836,  c.  85,  to  be  null  and 

void  (see  7  Will.  iv.  &  1  Vict.  c.  22,  s.  3) ; 
(/)  To  issue  a  licence  for  marriage  after  the  expiration  of  three 

months  after  entry  of  the  marriage  notice  (7  Will.  iv.  &  1  Vict, 

c.  22,  s.  3). 
The  penalties  of  perjury  are  incurred  by  any  person  who — 

(a)  Knowingly  and  wilfully  makes  a  false  declaration  under  the 

Marriage  Act,  1840,  to  procure  a  marriage  out  of  the  district 
in  which  the  parties  or  one  of  them  shall  dwell  (3  &  4  Vict, 
c.  72,  s.  4); 

(b)  Knowingly  and  wilfully  makes  a  false  solemn  declaration,  or  signs 

a  false  notice  required  by  the  Act  of  1856,  for  the  purpose  of 
procuring  a  marriage  under  the  Marriage  Acts,  1836,  1837, 
and  1840,  and  the  Act  of  1856. 

(c)  Forbids  the  granting  by  a  superintendent  registrar  of  a  certificate 

for  marriage  by  falsely  representing  himself  to  be  a  person 
whose  consent  to  the  marriage  is  required  by  law,  knowing 
such  representation  to  be  false  (1856,  s.  18). 
In  the  case  of  marriage  by  banns  no  oath  or  solemn  declaration  is 
required. 

VOL.  XIII.  28 


434  SOLEMNISATION  0^  MAEEIAGE 

The  solemn  declaration  (if  either  party,  not  being  widower  or  widow, 
is  under  twenty-one)  includes  a  declaration  that  the  consents  required 
by  law  have  been  given,  and  in  all  cases  includes  a  statement  of  belief 
that  there  is  no  impediment  of  kindred  or  alliance  or  other  lawful 
impediment  to  the  marriage  (1856,  ss.  2,  18). 

By  sec.  14  of  the  Marriage  Act,  1823,  c.  76,  in  the  case  of  marriage 
by  licence  one  of  the  parties  to  the  proposed  marriage  must  take  oath 
before  the  surrogate  or  other  person  having  authority  to  grant  the 
licence — (1)  That  there  is  no  impediment  of  kindred  or  alliance,  or  of 
any  other  lawful  cause  to  bar  or  hinder  the  marriage ;  (2)  as  to  residence 
for  fifteen  days  before  granting  the  licence  within  the  parish  or  chapelry 
where  the  marriage  is  to  be  solemnised;  (3)  if  either  party  not  being 
widower  or  widow  is  under  twenty-one,  that  the  consent  of  the  persons 
whose  consent  is  required  by  law  have  been  given,  or  that  there  is  no 
person  having  authority  to  give  consent. 

If  the  oath  so  taken  is  deliberately  false,  the  person  who  took  it  does 
not  incur  the  penalties  of  perjury  but  is  guilty  of  a  common-law  mis- 
demeanor {R.  V.  Chapman,  1849,  1  Den.  432). 

Registration. — When  a  marriage  has  been  solemnised  by  any  of  the 
authorised  modes  it  must  be  registered. 

The  Registrar-General  issues  marriage  register  books  for  use  by  the 
proper  minister  or  officer  of  the  religious  bodies  and  the  civil  registrars. 

By  sec.  30  of  the  Births  and  Deaths  Registration  Act  1836,  6  &  7 
Will.  IV.  c.  86,  s.  30,  the  Registrar-General  is  to  furnish  to  the  rector, 
vicar,  or  curate  of  every  church  and  chapel  in  England  where  marriages 
may  be  solemnised,  a  sufficient  number,  in  duplicate,  of  marriage  register 
books,  and  forms  for  certified  copies  thereof.  Every  clergyman,  immedi- 
ately after  every  office  of  matrimony  solemnised  by  him,  is  to  register, 
in  duplicate,  in  two  of  the  registers,  the  particulars  according  to  the 
form  in  Sched.  C ;  and  the  entry  must  be  signed  by  the  clergyman,  the 
parties  married,  and  two  attesting  witnesses.  The  proper  mode  of  signing 
for  the  woman  being,  for  a  spinster,  her  maiden  name,  and  if  a  widow, 
her  last  married  name. 

Every  clergyman  may  ask  parties  married  the  several  particulars 
required  to  be  registered  touching  such  marriage  (s.  40). 

Every  person  who  wilfully  makes,  or  causes  to  be  made,  for  the 
purpose  of  being  inserted  in  the  register,  any  false  statement,  touching 
any  of  the  particulars  required  to  be  registered,  is  subject  to  the  same 
pains  and  penalties  as  if  he  were  guilty  of  perjury  (s.  42). 

Refusing,  or  omitting  without  reasonable  cause,  to  register  a  liiar- 
riage,  or  carelessly  losing  or  injuring  the  books,  or  carelessly  allowing 
the  same  to  be  injured,  renders  the  clergyman  or  other  person  liable  to 
a  penalty  of  £50  for  every  offence  (s,  42). 

Accidental  errors  may  be  corrected,  and  the  person  relieved  from  the 
penalties  above  mentioned,  if,  within  one  month  after  their  discovery,  in 
the  presence  of  the  parties  married,  or,  in  case  of  their  absence  or  death, 
in  the  presence  of  the  superintendent  registrar  and  two  other  credible 
witnesses,  who  shall  attest  the  same,  he  shall  correct  the  erroneous  entry 
according  to  the  truth  of  the  case,  by  entry  in  the  margin,  without  any 
alteration  of  the  original  entry,  and  shall  sign  the  marginal  entry,  and 
add  thereunto  the  day  of  the  month  and  year  when  such  correction  is 
made.  This  must  be  done  in  the  duplicate  books  and  certified  copies, 
and  if  certified  copies  have  already  been  made,  he  must  make  and 
deliver  a  separate  certified  copy  of  the  original  entry  and  the  alteration 
(s.  44). 


SOLEMNISATION"  OF  MAERIAGE  435 

The  sections  above  quoted  also  apply  to  persons  certified  by  the 
recording  clerk  of  the  Society  of  Friends  at  their  central  office  in  London 
to  be  registering  officers  in  England  of  the  said  Society,  and  to  persons 
certified  by  the  president  of  the  London  Committee  of  British  Jews 
to  be  secretaries  of  a  synagogue  in  England  of  persons  professing  the 
Jewish  religion,  and  the  duties  of  these  officers  are  mutatis  mutandis 
the  same  as  in  the  case  of  the  clergy.  The  registering  officer,  or  secre- 
tary, is  not  necessarily  present,  but  must  satisfy  himself  that  the 
proceedings  in  relation  to  the  marriage  were  in  conformity  with  the 
usages  of  his  religious  community  (s.  31). 

In  the  case  of  marriages  in  a  registered  building  or  at  a  registrar's 
office  registration  is  effected  in  a  similar  manner  but  under  other  statutes. 

In  the  case  of  a  marriage  in  the  registrar's  office  or  at  a  registered 
building,  at  which  the  registrar  is  officially  present,  the  registrar  must 
register  forthwith  in  accordance  with  the  form  provided  by  the  Births 
and  Deaths  Registration  Act,  1836.  The  entry  in  the  two  books  must 
be  signed  by  the  parties  married  and  by  two  witnesses,  and  by  the  person 
by  or  before  whom  the  marriage  is  solemnised,  if  any,  and  by  the  registrar 
(1836,  c.  85,  8.  23). 

Marriages  solemnised  under  the  Act  of  1898  are  to  be  registered  by 
the  authorised  person  immediately  after  the  marriage  (in  each  of  two 
duplicate  books  provided  by  the  Registrar- General)  in  the  form  in  Sched.  C 
to  the  Births  and  Deaths  Registration  Act,  1836.  Both  books  are  to  be 
signed  by  the  authorised  person,  the  parties  to  the  marriage,  and  by  two 
witnesses  (1898,  c.  58,  s.  7).  There  are  subsidiary  provisions  as  to  the 
supply  of  the  register,  and  security  for  due  registration  and  safe  custody 
{ihid.). 

In  the  case  of  marriages  under  the  Foreign  Marriage  Act,  1892,  the 
marriage  officer  is  provided  with  two  marriage  register  books,  and  is 
bound  to  register  the  marriage  in  duplicate,  i.e.  in  each  book,  as  nearly 
as  possible  in  the  form  provided  by  law  for  registering  marriages  in 
England.  The  entry  in  each  book  is  signed  by  the  parties  to  the 
marriage,  by  two  witnesses  of  the  marriage,  the  person  solemnising  the 
marriage  if  other  than  the  marriage  officer,  and  the  marriage  officer 
(1892,  c.  23,  s.  9).  Subject  to  the  regulations  under  the  Act,  British 
consuls  who  have  personally  attended  a  marriage  between  parties  of 
whom  one  at  least  is  a  British  subject,  solemnised  in  a  foreign  country 
according  to  the  local  law,  may  register  the  marriage  under  the  regula- 
tions (s.  18).  The  Act  of  1892,  however,  does  not  affect  the  validity  of 
such  marriage. 

Searches. — Searches  may  be  made  in  all  marriage  registers,  and  certi- 
fied" copies  of  entries  therein  can  be  procured  from  the  person  having 
custody  (6  &  7  Will.  iv.  c.  86,  s.  35,  Church  of  England,  Jews  and  Quakers, 
and  civil  registrars ;  61  &  62  Vict.  c.  58,  s.  7  (5),  Nonconformists,  etc.). 

Searches  may  also  be  made  and  copies  of  entries  obtained  at  the 
General  Register  Office,  Somerset  House  (6  &  7  Will.  iv.  c.  86,  ss.  37,  38 ; 
37  &  38  Vict.  c.  88,  s.  42). 

Certified  copies  from  the  general  register  office,  sealed  and  stamped 
with  the  seal  of  the  office,  are  evidence  of  the  marriage  to  which  the 
entry  relates  without  further  or  other  proof  of  the  entry  (1836, 
s.  38). 

Certified  copies  of  entries  in  the  original  register  are  also  evidence 
•of  the  marriage  (Evidence  Act,  1851,  14  &  15  Vict.  c.  99,  s.  14). 

The  certificate  does  not  prove  the  identity  of  the  parties  to  the 


436 


SOLICITATION 


marriage,  which  must  be  proved  aliunde,  and  marriages  may  be  proved 
without  production  of  the  certificates. 

A  mere  certificate  by  the  parson,  which  is  not  a  certified  copy  of 
the  entry  in  the  register,  is  not  admissible  {Nokes  v.  Maitland,  1824, 
2  Addams,  320). 

See  Banns  of  Marriage;  Clergy;  Divorce;  Evidence;  Jews; 
Licence,  Marriage;  Nonconformist;  Nullity  of  Marriage;  Eoyal 
Marriages;  Eegistrar-General ;  Superintendent  Eegistrar's  Cer- 
tificate. 

\_Authorities. — Hammick,  Marriage  Law  of  England;  Phillimore, 
Ecclesiastical  Law,  2nd  ed. ;  Geary,  Marriage^ 

^oWoXXjdiWoiX, — The  sohciting  and  inciting  a  person  to  commit 
a  felony  where  no  felony  is  in  fact  committed,  is  a  misdemeanor.  A 
person  convicted  of  soliciting  another  to  commit  murder  is  liable  to  be 
kept  in  penal  servitude  for  any  term  not  exceeding  ten  years  (24  &  25 
Vict.  c.  100,  s.  4). 

Solicitation  of  Customers.— See  Goodwill;  Part- 
nership. 


Solicitor.— 


TABLE  OF  CONTENTS. 


I.  History  of  the  Profession  . 
Solicitors  and  Attorneys  . 
The  Law  Society 

IL  How  TO  Become  a  Solicitor 

(i.)  Articles  of  Service   . 

(ii.)  Examinations  . 

(iii.)  Admission     to      the 

Roll     . 

Removal    from    the 

Roll      . 

Re-admission  to  the 

Roll     . 

(iv.)  Certificate  to  Practise 

(v.)  Solicitors  who  wish  to 

become  Barristers 

TTT.  Retainer  by  a  Client  . 
Retainer  generally    . 
Joint  and    Separate    Re- 
tainers .... 
Determination  of  Retainer 
(i.)  By  Death 
(ii.)  By  Act  of  the  Client 
(iii.)  By  Act  of  the  Solici- 
tor        ..         . 

rv.  Privileges  of  a  Solicitor     . 

V.  Powers  of  a  Solicitor 

VI.  Disabilities  of  a  Solicitor  . 

VH.  Ddties  of  a  Solicitor  . 

(i.)  The  Duty  of  a  Solici- 
tor to  his  Client     . 
(ii.)  The  Duty  of  a  Solici- 
tor to  the  Court     . 


437 

VHL 

Breach  of  Ddty    . 

458 

437 

(i.)  Action  against  a  Solici- 

438 

tor  for  Negligence  . 
What    is    Action- 

458 

439 

able  Negligence 

459 

439 

(«)  Bad  Advice  459 

440 

(6)  Negligence 
in    the 

441 

Conduct 
of  an  Ac- 

442 

tion 
(c)  0  m  i  s- 

460 

442 

sions,  etc. 

461 

443 

(ii.)  Refusal  to  Pay  Costs 
(iii.)  Summary    Jurisdic- 

461 

443 

tion 

462 

444 

(iv.)  Striking  a  Solicitor 

ofE  the  Roll  . 

464 

444 

Procedure 
(v.)  Criminal      Proceed- 

464 

446 

ings    against    the 

446 

Solicitor 

458 

447 

447 

IX. 

Partnerships  between  Solici- 

tors     

467 

447 

Liability  of  one  Partner 

448 

for  the  Acts  and  De- 

faults of  Another 

468 

451 

Dissolution  of    Partner- 

ship ;  Goodwill  . 

469 

453 

X. 

Country  Solicitor  and  London 

455 

Agent        .... 

469 

455 

XL 

Solicitor's  Remuneration 
Agreements  for  Remuner- 

470 

457 

ation      .... 

471 

SOLICITOR 


437 


xn. 


(a)  In       Contentious 

Business    .        .     471 
(6)  In   Conveyancing 
and  Non-conten- 
tious Business  .     473 
Remuneration  in  the  Ab- 
sence of  Special  Agree- 
ment    ....     474 
Securities  for  Costs  given 
by  a  Client  to  his  Solici- 
tor        ...        .     476 
Account  by  Solicitor        .     477 
Payment     of     Costs     by 
Third  Parties        .        .     477 
(i.)  Lessor's  Solicitor 

paid  by  Lessee      477 
(ii.)  Mortgagee's  Soli- 
citor   paid    by 
Mortgagor        .     478 
(iii.)  Marriage   Settle- 
ments      .         .     478 
(iv.)  Solicitor  em- 
ployed by  Trus- 
tees .        .         .478 
Solicitor  as  Trustee  .         .     479 
Solicitor  as  Mortgagee      .     480 

Reference  to  Taxation         .    481 

(i.)  Taxation      before 

Payment       and 

within    Twelve 

Months      .        .     481 

(ii.)  Taxation  after 

Payment   .        .     484 
(iii.)  Taxation  after 
Verdict  or  after 
Twelve  Months 
from  Delivery  .     489 


(iv.)  Taxation  at  the  In- 
stance of  Third 
Parties 

{a)  Taxation 
by  Third 
Party 
Liable    . 
(h)   Taxation 
by  Third 
Party  In- 
terested . 
Costs  of  Taxation 
Security     for     Costs     of 

Taxation 
Interest  on  Costs  and  Dis- 
bursements . 


Xm.  Recovery  of  Costs 


490 


490 


491 
492 

493 

493 


494 
494 


(i.)  By  Action 
(ii.)  By    enforcing    Pay- 
ment  under    Sub- 
mission   in    Order 
for  Taxation  .        .     494 
(iii.)  By  enforcing   Solici- 
tor's Lien       .         .     494 
(a)  Lien  on  Papers  494 
(6)  Lien  on  Juag- 
m  e  n  t     or 
Property  re- 
covered    in 
an  Action    .     498 
(iv.)  By       obtaining       a 
Charging      Order 
under   the  Solici- 
tors Act,  1860       .     499 


I.  History  of  the  Profession. 

Solicitors  and  Attorneys. — Prior  to  1875  the  term  "solicitor"  was 
restricted  to  persons  who  conducted  suits  in  the  Court  of  Chancery ; 
while  those  who  acted  in  the  common  law  Courts  were  called  "  attorneys." 
But  now  (by  virtue  of  sec.  87  of  the  Judicature  Act,  1873,  which  came 
into  operation  on  November  1,  1875)  all  solicitors,  attorneys,  and 
proctors  empowered  to  practise  in  any  Division  of  the  High  Court  of 
Justice  or  in  the  Court  of  Appeal  are  called  "  solicitors  of  the  Supreme 
Court."  In  the  following  year  another  Act  was  passed,  called  the  Legal 
Practitioners  Act,  1876,  39  &  40  Vict.  c.  66,  by  which  every  certi- 
ficated solicitor  of  the  Supreme  Court  was  enabled  to  appear  as  a 
proctor  in  the  provincial  ecclesiastical  Courts  of  Canterbury  and  York. 
And  a  general  power  to  practise  in  every  ecclesiastical  Court,  and  in 
all  matters  relating  to  applications  for  notarial  faculties,  and  to  do 
all  other  work  appertaining  to  the  office  or  profession  of  a  proctor, 
was  given  to  every  solicitor  of  the  Supreme  Court  by  sec.  17  of  the 
Solicitors  Act,  1877.  Further,  by  sec.  21  of  the  same  Act,  it  is  pro- 
vided that  all  enactments  referring  to  "  attorneys  "  shall  be  construed 
as  if  the  expression  "  solicitor  of  the  Supreme  Court  "  were  substituted 
for  the  word  "  attorney. "  See  also,  in  connection  with  the  history  of 
solicitors,  the  articles  Notary  Public,  Vol.  X.  p.  30,  and  Scrivexer, 
ante,  p.  180. 


438  SOLICITOR 

The  history  of  the  profession  prior  to  1875  has  been  ably  written  by 
Mr.  Christian  in  his  book  A  Short  History  of  Solicitors,  from  which 
one  passage  may  be  quoted  here :  "  In  this  country  few  professions  are 
so  old  as  the  solicitor's,  and  probably  none  is  so  stringently  regulated  or 
so  jealously  supervised  iDy  the  State.  From  the  first  day  of  his  apprentice- 
ship to  the  last  day  of  his  practice  every  action  of  the  solicitor  is  subject 
to  regulations  laid  down  by  Parliament;  his  education,  his  right  to 
practise,  his  relations  to  his  employers,  his  remuneration,  all  are  minutely 
prescribed  by  the  legislature."  And  yet,  contrary  to  universal  belief,  a 
solicitor  is  not  "a  gentleman  by  Act  of  Parliament;"  "no  one,"  says 
Mr.  Christian,  "  has  been  able  to  find  the  Act  of  Parliament  which 
conferred  on  solicitors  that  rank  or  style."  The  principal  statutes 
dealing  with  solicitors  are  the  following : — 


6  &  7  Vict.  c.  73. 

Solicitors  Act,  1843. 

23  &  24  Vict.  c.  127. 

Solicitors  Act,  1860. 

33  &  34  Vict.  c.  28. 

Attorneys  and  Solicitors  Act, 

1870. 

37  &  38  Vict.  c.  68. 

Attorneys  and  Solicitors  Act, 

1874, 

40  &  41  Vict.  c.  25. 

Solicitors  Act,  1877. 

44  &  45  Vict.  c.  44. 

Solicitors'  Remuneration  Act, 

1881. 

51  &  52  Vict.  c.  65. 

Solicitors  Act,  1888. 

57  Vict.  c.  9. 

Solicitors  Act,  1894. 

62  Vict.  c.  4. 

Solicitors  Act,  1899. 

6  Edw.  VII.  c.  24. 

Solicitors  Act,  1906. 

It  is  proposed  throughout  this  article  to  refer  to  these  Statutes  as 
"Sol.  Act,  1843,  1860,"  etc. 

The  Law  Society. — This  Society  has  done  much  since  its  creation  in 
1825  to  advance  the  interests  and  improve  the  position  of  solicitors. 
There  was  an  earlier  association  of  London  attorneys  and  solicitors, 
called  "  The  Society  of  Gentlemen  Practisers  in  the  Courts  of  Law  and 
Equity,"  which  flourished  from  1739  till  about  1820,  when  it  mysteriously 
expired.  It  did  good  service  to  the  profession  in  the  year  1760,  by 
establishing  the  right  of  London  solicitors  to  do  conveyancing  work, 
which  was  then  claimed  by  the  Scriveners'  Company  as  their  exclusive 
"mystery"  or  monopoly.  Early  in  1825  a  Mr.  Bryan  Holme  issued  a 
circular,  in  which  he  advocated  a  scheme  for  the  establishment  of  a 
"  Law  Institution."  Two  meetings  were  held,  on  March  29,  and  June  2, 
1825,  at  which  a  society  was  formed  under  that  name,  and  a  com- 
mittee of  management  appointed.  Mr.  Robert  Maugham  was  appointed 
secretary,  and  continued  to  hold  that  office  till  1862.  A  deed  of  settle- 
ment was  prepared,  which  bore  date  February  16,  1827;  a  convenient 
site  for  the  offices  and  library  of  the  Society  was  secured  in  1828 ;  it  lay 
partly  in  Chancery  Lane  and  partly  in  Bell  Yard,  and  is  indeed  part  of 
the  present  Law  Institution.  On  December  22,  1831,  a  Royal  Charter 
was  granted  by  William  iv.  to  the  Society,  incorporating  it  under  the 
title  of  "  The  Society  of  Attorneys,  Solicitors,  Proctors,  and  others,  not 
being  Barristers,  practising  in  the  Courts  of  Law  and  Equity  of  the 
United  Kingdom."  This  full  title  being  too  long  for  constant  use,  the 
Solicitors  Act,  1860,  bestowed  on  the  Society  a  shorter  name — "The 
Incorporated  Law  Society."  A  second  charter  was  subsequently  granted 
by  Her  late  Majesty  on  February  26,  1845,  and  a  supplemental 
charter  on  November  26,  1872.  By  a  second  supplemental  charter, 
dated  June  4, 1903,  the  title  of  the  Society  was  still  further  abbreviated. 


SOLICITOE  439 

and  it  is  now  known  simply  as  "  The  Law  Society."  The  progress  of 
the  Society  is  fully  described  in  the  Handbook  of  the  Law  Society 
published  in  1905. 

In  1833  the  Society  first  undertook  the  education  of  articled  clerks 
in  the  principles  and  practice  of  the  law.  The  first  examination  of 
candidates  took  place  in  Michaelmas  term  1836.  In  1877  the  entire 
practical  control  of  the  examinations  which  solicitors  must  pass  was 
placed  in  the  hands  of  the  Incorporated  Law  Society  (Sol.  Act,  1877). 
The  system  of  lectures — commenced,  as  already  stated,  in  the  year 
1833 — was,  in  the  year  1864,  supplemented  by  law  classes,  to  which,  in 
1879,  were  added  elementary  classes  for  the  benefit  of  articled  clerks 
who  had  not  passed  their  intermediate  examination.  The  educational 
system  has  from  time  to  time  been  modified  as  experience  has  dictated, 
and  is  now  conducted  by  a  staff  of  tutors  and  readers  under  the  super- 
vision of  Mr,  Edward  Jenks,  M.A.,  B.C.L.  Any  duly  qualified  solicitor 
is  eligible  to  become  a  member  of  the  Law  Society.  He  must  be  pro- 
posed by  two  members  of  the  Society ;  his  name  must  be  exhibited  in 
the  Hall  for  fourteen  days,  and  then  submitted  to  the  ballot  at  a  meeting 
of  the  council.  If  elected,  he  must  pay  an  entrance  fee,  and  an  annual 
subscription.  By  sec.  21  of  the  Solicitors  Act,  1843,  the  Society  was 
appointed  the  "  Eegistrar  of  Solicitors."  By  the  Act  of  1888,  judicial 
powers  have  been  conferred  on  the  committee  of  the  Society,  which 
holds  a  court  {Lilley  v.  Roney,  1892,  61  L.  J.  Q.  B.  727 ;  8  T.  L.  R. 
642)  to  investigate  charges  of  professional  misconduct  made  against 
solicitors.  The  history  of  this  Society  is  indeed  a  remarkable  record 
of  useful  and  honourable  work. 

II.   How  TO  BECOME  A   SOLICITOR. 

No  woman  has  ever  yet  been  admitted  a  solicitor,  though  there  is 
nothing  in  any  of  the  Solicitors  Acts  to  prevent  this. 

No  man  is  qualified  to  be  a  solicitor  unless  he  has — 

(i.)  Duly  served  as  a  clerk  to  a  practising  solicitor  under  binding 
articles  for  a  period  varying  from  three  to  five  years ; 

(ii.)  Passed  all  necessary  examinations ;  and 

(iii.)  Been  duly  admitted  and  entered  on  the  roll  of  solicitors,  which 
is  kept  by  the  secretary  of  the  Law  Society,  in  his  capacity  as  registrar 
of  solicitors.  Even  then  he  will  not  be  competent  to  practise  as  a 
solicitor,  unless  he  has — 

(iv.)  Taken  out  a  proper  certificate,  and  been  duly  registered  on  the 
roll  of  solicitors  for  the  current  year. 

The  solicitor  of  a  Public  Department  of  State  need  not  be  a  solicitor, 
or  admitted  or  enrolled  as  a  solicitor,  or  take  out  any  certificate  to  practise 
(Sol.  Act,  1874,  s.  12 ;  54  &  55  Vict.  c.  39,  s.  43  (3)).  Any  barrister  of 
not  less  than  five  years'  standing  who  has  procured  himself  to  be  dis- 
barred with  a  view  to  becoming  a  solicitor,  and  has  obtained  from  two  of 
the  benchers  of  the  Inn  to  which  he  belonged  a  certificate  that  he  is  a 
fit  and  proper  person  to  practise  as  a  solicitor,  is  not  required  to  serve 
under  any  articles  or  to  pass  any  examination  except  the  final  examina- 
tion. On  passing  that,  he  is  entitled  to  be  at  once  admitted  and  enrolled 
as  a  solicitor  (Sol.  Act.  1877,  s.  12). 

(i.)  Articles  of  Service. — No  person  can  be  admitted  a  solicitor  unless 
he  has  served  a  solicitor  as  his  articled  clerk  for  a  period  varying  from 
three  to  five  years  (Sol.  Act,  1843,  s.  3).   There  are  only  two  exceptions  to 


440  SOLICITOK 

this  rule — (a)  Certain  colonial  solicitors  (Colonial  Solicitors  Act,  1900) 
and  (5)  barristers  of  five  years'  standing  who  have  procured  themselves 
to  be  disbarred  with  a  view  to  being  admitted  solicitors.  The  articles 
are  generally  under  seal,  and  if  the  clerk  be  a  minor  his  father  or 
guardian  is  generally  joined  as  a  party.  The  stamp  duty  payable  on  such 
articles  is  the  enormous  sum  of  £80.  It  is  the  duty  of  the  solicitor  to 
see  that  the  articles  are  produced  to  the  registrar  and  duly  registered 
within  six  months  after  their  execution  by  the  clerk,  as  required  by 
sec.  7  of  the  Sol.  Act,  1888  (see  Dufaur  v.  &igd,  1853,  4  De  G.,  M.  &  G. 
520 ;  43  E.  R  610 ;  22  L.  J.  Ch.  678).  A  fee  of  five  shillings  is  payable 
to  the  registrar  for  entering  the  particulars  in  his  book. 

Anyone  who  has  taken  the  degree  of  B.A.  or  LL.B.  at  any  British 
university,  or  who  has  already  served  for  ten  years  as  a  hond  fide,  clerk 
to  a  solicitor,  and  any  writer  to  the  signet,  or  Scotch  solicitor  or  advo- 
cate (35  &  36  Vict.  c.  81,  s.  1),  will  not  be  required  to  serve  for  more 
than  three  years.  And  anyone  who  has  passed  the  first  public  examina- 
tion before  Moderators  at  Oxford,  or  the  previous  examination  at 
Cambridge,  or  has  passed  the  London  Matriculation  examination  in 
the  first  division,  or  one  of  the  other  public  examinations  of  equal 
standing  specified  in  sec.  13  of  the  Sol.  Act,  1877,  and  the  Orders  of 
December  5,  1877,  May  1,  1880,  and  September  1,  1888,  need  only 
serve  for  four  years.  In  every  other  case  the  clerk  must  serve  for  five 
years  (Sol.  Act,  1843,  s.  3). 

During  the  whole  of  the  period  prescribed  the  clerk  must  serve  his 
master  actually  and  continuously;  and  his  master  must  be  a  duly 
qualified  solicitor,  and  in  actual  practice  as  a  solicitor  during  the  whole 
time  {Ex  parte  Fereday,  1877,  46  L.  J.  Ch.  504).  An  occasional  interval 
for  holidays  will  of  course  be  allowed,  and  so  will  a  short  absence 
caused  by  ill-health.  But  the  clerk  must  not  hold  any  office  or  engage  in 
any  employment  with  anyone  except  the  solicitor  to  whom  he  is  articled, 
or  for  one  year  his  London  agent  (Sol.  Act,  1843,  s.  12 ;  1860,  s.  10). 
To  this  rule,  however,  there  are  two  exceptions : — 

(a)  A  clerk  who  has  served  for  a  period  of  either  four  or  five  years 
may  have  spent  one  of  them  in  reading  with  a  practising  barrister  as 
his  pupil  (Sol.  Act,  1843,  s.  6). 

(&)  A  clerk  is  sometimes  allowed  to  take  up  a  trifling  or  temporary 
employment  which  will  not  really  interfere  with  his  duties  or  studies, 
provided  he  obtains  the  previous  consent  both  of  his  master  and  of  the 
Master  of  the  Kolls,  or  any  judge  of  the  High  Court,  after  due  notice 
to  the  Law  Society  (Sol.  Act,  1874,  ss.  4,  5,  and  6). 

(ii.)  ExaminatioTis.  —  Articled  clerks  (unless  exempted)  must  pass 
three  separate  examinations : — 

1.  The  preliminary  examination  ; 

2.  The  intermediate  examination ; 

3.  The  final  examination. 

There  is  also  a  voluntary  examination  for  honours.  Each  examina- 
tion is  held  four  times  a  year. 

1.  The  preliminary  is  an  examination  in  general  knowledge,  such 
as  is  possessed  by  the  average  boy  in  the  upper  forms  of  any  good 
school.  It  is  held  in  many  large  towns  besides  London.  The  clerk 
(unless  exempted)  must  pass  this  examination  before  signing  his  articles. 
All  graduates  in  arts  or  laws  of  any  British  university,  all  barristers, 
and  all  persons  who  have  passed  one  of  certain  examinations  (those 
mentioned  in  sec.  10  of  the  Sol.  Act,  1877,  and  one  or  two  similar 


SOLICITOK  441 

examinations),  will  be  excused  this  examination ;  and  the  Lord  Chief 
Justice  or  the  Master  of  the  Eolls  may  exempt  other  persons  from  the 
whole  or  part  of  the  examination  on  such  conditions  as  may  seem  fit 
(Sol.  Act,  1877,  s.  11;  but  see  the  Order  of  May  9,  1904,  which  is  set 
out  in  the  Weekly  Notes  for  that  year.  Part  II.,  p.  159). 

2.  Every  articled  clerk  may  (unless  exempted)  present  himself  for 
the  intermediate  examination  at  any  time  after  completing  twelve 
months'  service.  He  will  be  examined  in  some  elementary  work  on 
the  Laws  of  England,  generally  Stephen's  Commentaries.  There  is  now 
power  under  the  Sol.  Act,  1894,  for  the  Law  Society  to  exempt  persons 
who  have  passed  certain  examinations  in  law  from  the  whole  or  part 
of  the  intermediate  examination.  Thus  a  certificate  that  an  articled 
clerk  has  passed  the  examination  required  for  the  degree  of  B.C.L.  or 
LL.B.  at  one  of  the  following  universities  in  the  United  Kingdom,  viz. : 
Oxford,  Cambridge,  London,  Victoria  of  Manchester,  Dublin,  Durham, 
Wales,  Birmingham,  Liverpool,  or  Leeds,  or  a  certificate  that  he  has, 
before  entering  into  articles,  taken  honours  in  the  Final  Honour  School 
of  Jurisprudence  at  Oxford,  or  in  the  Law  Tripos  at  Cambridge,  will 
now  be  accepted  in  lieu  of  the  whole  intermediate  examination  (Regu- 
lations of  July  1904).  Barristers  of  five  years'  standing  who  have 
procured  themselves  to  be  disbarred,  and  certain  colonial  solicitors,  are 
also  exempted  from  this  examination. 

3.  As  soon  as  an  articled  clerk  has  completed  his  term  of  service, 
be  it  for  three,  four,  or  five  years,  he  should  present  himself  for  the 
final  examination.  He  must  give  at  least  forty-two  days'  notice  to  the 
secretary  of  his  intention.  He  must  leave  with  the  secretary  his 
articles  and  certificates,  and  answer  certain  questions  in  writing,  to 
prove  that  he  has  duly  served  under  his  articles.  If  these  answers  be 
not  satisfactory  the  candidate  will  not  be  allowed  to  present  himself 
for  the  examination.  All  articled  clerks  must  pass  the  final  examina- 
tion ;  so  must  a  barrister  of  five  years'  standing  who  desires  to  become 
a  solicitor  (Sol.  Act,  1877,  s.  12).  The  only  persons  exempted  are 
certain  colonial  solicitors  of  not  less  than  three  years'  standing  (63  & 
64  Vict.  c.  14).  Candidates  for  the  final  examination  are  examined  in 
the  principles  of  the  law  of  real  and  personal  property,  and  the  practice 
of  conveyancing;  in  the  principles  of  law  and  procedure  in  matters 
usually  determined  or  administered  in  the  Chancery,  King's  Bench, 
and  Probate,  Divorce,  and  Admiralty  Divisions  of  the  High  Court  of 
Justice;  in  the  law  and  practice  of  bankruptcy;  and  also  in  ecclesi- 
astical and  criminal  law  and  practice ;  and  proceedings  before  justices 
of  the  peace.  To  every  candidate  who  passes  the  final  examination 
a  certificate  is  given  which  entitles  him  to  apply  for  admission ;  unless, 
indeed,  it  is  alleged  that  he  is  morally  unfit  to  be  an  officer  of  the 
Supreme  Court,  in  which  case  the  committee  will  hold  an  investigation, 
and  if  they  find  the  allegation  proved,  the  candidate  will  be  refused  a 
certificate  (Regulations  of  November  1877,  r.  29).  An  appeal  lies  to 
the  Master  of  the  Rolls  from  the  refusal  of  such  a  certificate  (Sol.  Act, 
1877,  s.  9). 

(iii.)  Admission  to  the  Roll. — Any  clerk  who  has  duly  served  under 
his  articles,  who  has  attained  the  age  of  twenty-one  years,  and  who  has 
obtained  from  the  Law  Society  a  certificate  that  he  has  passed  the  final 
examination,  may  apply  to  the  Master  of  the  Rolls  to  be  admitted  as  a 
solicitor.  He  must  give  notice  to  the  Law  Society  of  his  intention  to 
apply  six  weeks  at  least  before  the  first  day  of  the  month  in  which 


442  SOLICITOE 

he  proposes  to  be  admitted.  And  then  the  Master  of  the  Eolls,  unless 
cause  to  the  contrary  is  shown  to  his  satisfaction,  will,  by  writing  under 
his  hand,  admit  such  clerk  to  be  a  solicitor  (Sol.  Act,  1888,  s.  11).  The 
stamp  duty  payable  on  such  admission  is  £25.  On  production  of  the 
admission  signed  by  the  Master  of  the  Eolls,  and  on  payment  of  a  fee 
not  exceeding  £5  to  the  Society  (thus  making  the  total  cost  of  admission 
£30),  the  registrar  will  cause  the  name  of  the  clerk  to  be  entered  on 
the  roll  of  solicitors  (s.  11),  which  is  now  in  the  custody  of  the  Law 
Society.  It  is  always  open  during  ofhce  hours  to  the  inspection  of  any 
person  without  fee  or  reward  (Sol.  Act,  1888,  ss.  5,  6). 

Removal  from  the  Boll. — A  solicitor  may  be  struck  off  the  roll  for 
misconduct  (see  2^ost,  p.  464) ;  or  he  may  have  his  name  removed  at  his 
own  request,  e.g.  if  he  proposes  to  be  called  to  the  Bar.  The  procedure 
when  a  solicitor  himself  applies  to  have  his  name  removed  from  the 
roll  is  very  similar  to  that  pursued  in  the  case  of  alleged  misconduct, 
except  that  no  report  is  made  to  the  High  Court  of  Justice.  The  appli- 
cation must  be  sent  to  the  registrar  of  solicitors,  accompanied  by  an 
affidavit  made  by  the  solicitor.  The  application  when  received  is  con- 
sidered by  the  committee,  who  may  require  the  solicitor  to  give  notice 
by  advertisement  or  otherwise  of  the  application,  and,  if  they  consider 
a  hearing  necessary,  of  the  day  fixed  for  the  purpose.  The  committee 
then  makes  its  report,  and  forwards  it  to  the  Master  of  the  Eolls,  who 
will  make  such  order  thereon  as  he  shall  think  fit. 

Re-admission  to  the  Roll. — A  solicitor  who  has  been  struck  off  the 
roll  by  his  own  wish  can  apply  to  be  re-admitted  (see  Sol.  Act,  1888, 
Part  IV.).  So  can  any  solicitor  who  has  been  struck  off  the  roll  for 
misconduct,  provided  he  has  done  everything  in  his  power  to  make 
reparation  to  the  party  whom  he  has  injured ;  and  provided  his  conduct 
is  shown  (by  affidavit)  to  have  been  good  in  the  interval  {In  re  Poole, 
1869,  L.  E.  4  C.  P.  350 ;  In  re  Brandreth,  1891,  60  L.  J.  Q.  B.  501 ;  64 
L.  T.  739).  It  was  formerly  held  that  a  solicitor  who  had  been  struck 
off  the  roll  for  a  breach  of  sec.  32  of  the  Sol.  Act,  1843  {e.g.  for  allowing 
an  unqualified  person  to  practise  in  his  name),  could  never  be  re-admitted, 
for  that  section  expressly  provided  that  he  should  "  for  ever  after  be 
disqualified  from  practising  as  an  attorney  or  solicitor"  {In  re  Lamh, 
1889,  23  Q.  B.  D.  477 ;  In  re  Kelly,  [1895]  1  Q.  B.  180 ;  In  re  Burton  & 
Blinkhorn,  [1903]  2  K.  B.  300).  But  the  law  on  this  point  was  altered 
by  sec.  1  of  the  Sol.  Act,  1899,  which  empowers  the  Master  of  the  Eolls 
to  replace  on  the  roll  the  name  of  "  any  solicitor  "  who  has  been  struck 
off  the  roll  under  the  provisions  of  sec.  32  of  the  Sol.  Act,  1843. 

An  application  by  a  person  who  has  been  struck  off  the  roll  to  be 
re-admitted  as  a  solicitor  must  be  made  by  petition  to  the  Master  of  the 
Eolls  under  the  hand  of  the  applicant,  and  be  accompanied  by  an  affidavit 
of  the  matters  of  fact  on  which  he  relies  in  support  of  his  application. 
The  applicant  must  at  least  six  weeks  before  sending  in  his  petition 
give  written  notice  of  his  intention  to  do  so  to  the  registrar.  He  must 
send  to  the  registrar  a  copy  of  the  petition,  and  of  the  affidavit  or 
affidavits  in  support  of  it,  within  two  days  after  he  has  sent  them  to 
the  Master  of  the  Eolls.  The  secretary  of  the  Master  of  the  Eolls  will 
give  notice  of  the  day  of  hearing  to  the  registrar,  who  will  forthwith 
give  notice  to  the  applicant ;  and  the  registrar  and  the  applicant  may 
appear  in  person  at  the  hearing  or  be  represented  by  counsel  or  solicitor. 
The  Master  of  the  Eolls,  on  hearing  the  petition,  may  make  such  order 
disposing  thereof  as  he  may  think  fit,  or  may  refer  the  petition  to  be 


SOLICITOK  443 

disposed  of  by  a  Divisional  Court.  The  order  made  on  the  petition, 
together  with  the  affidavit  or  affidavits  used  at  the  hearing,  must  be 
filed  with  the  registrar,  who  will  make  such  entry  on,  or  alteration  in, 
the  roll  of  solicitors  as  is  required  by  the  order. 

(iv.)  Certificate  to  Practise. — Although  a  solicitor  has  been  duly 
admitted,  and  his  name  entered  on  the  roll,  he  cannot  practise  unless 
he  annually  takes  out  a  certificate  and  causes  it  to  be  duly  stamped. 
This  certificate  is  given  by  the  registrar  of  solicitors ;  the  stamp  duty 
payable  on  it  is  £9  if  the  solicitor  practises  within  ten  miles  of  the 
General  Post  Office,  £6  if  he  practises  beyond  that  distance.  During 
the  first  three  years,  however,  the  solicitor  need  only  pay  half  the 
amount — £4,  10s.  for  London,  £3  for  the  country. 

A  solicitor  who  practises  without  having  first  taken  out  such  a 
certificate  is  liable  to  a  penalty  of  £50  (54  &  55  Vict.  c.  39,  s.  43). 
Moreover,  he  cannot  recover  from  his  client  any  costs,  fees,  rewards,  or 
disbursements  for  any  work  done  or  proceeding  taken,  while  he  was 
without  a  certificate  (Sol.  Act,  1874,  s.  12 ;  54  &  55  Vict.  c.  39,  s.  43). 
The  certificate  ought  strictly  to  be  taken  out  on  16th  November  in 
each  year.  A  solicitor  is,  however,  allowed  a  whole  month  from  that 
date  in  which  to  take  it  out.  If  he  takes  out  a  certificate  on  or  before 
16th  December  it  will  bear  date,  and  relate  back  to  16th  November. 
If  he  does  not  take  it  out  till  after  16th  December  he  is  disqualified  till 
he  does  take  one  out ;  and  the  certificate  when  taken  out  will  not  relate 
back,  so  that  for  work  done  in  the  interval  the  solicitor  cannot  recover 
any  remuneration  {Kent  v.  Ward,  1896,  70  L.  T.  612;  Lire  Sweeting, 
[1898]  1  Ch.  268). 

A  solicitor  who  neglects  for  a  whole  twelvemonth  to  renew  his  certi- 
ficate is  no  longer  entitled  to  renew  it  as  of  right ;  he  must  apply  for 
leave  to  the  registrar  of  solicitors  who  then  has  a  discretion  to  grant 
or  refuse  the  application  (Sol.  Act,  1888,  s.  16).  The  registrar  has  a 
similar  discretion  whenever  the  solicitor  applying  for  a  fresh  certificate 
or  the  renewal  of  a  certificate  to  practise  is  an  undischarged  bankrupt 
(Sol.  Act,  1906,  8.  1).  Except  in  these  two  cases  the  registrar  has  no 
power  to  refuse  a  certificate  to  any  duly  qualified  solicitor  who  is  on 
the  rolls,  who  has  applied  in  proper  time,  and  who  has  complied  with 
all  other  requirements  of  sec.  23  of  the  Sol.  Act,  1843  {In  re  A  Solicitor, 
[1902]  1  K.  B.  128,  overruling  In  re  an  Application  under  the  Solicitors 
Act,  1899,  80  L.  T.  720).  In  both  the  above  cases,  if  the  registrar 
refuses  leave,  the  solicitor  can  appeal  to  the  Master  of  the  Eolls  who 
has  the  same  discretion  as  the  registrar  {ibid.).  Neither  the  registrar 
nor  the  Master  of  the  Eolls  can  give  him  more  than  a  certificate  for  the 
current  year.  The  King's  Bench  Division  has  no  jurisdiction  in  the 
matter  {In  re  Chaffers,  1885, 15  Q.  B.  D.  467).  But  the  Court  of  Appeal 
has  power  to  make  an  order  restraining  a  solicitor  from  applying  to  the 
registrar  to  renew  his  certificate  without  the  leave  of  the  Court  {In  re 
Whitehead,  1885,  28  Ch.  D.  614). 

(v.)  Solicitors  who  wish  to  become  Barristers.  —  The  Consolidated 
Eegulations  of  the  four  Inns  of  Court  contain  a  provision  (r.  14)  which 
facilitates  the  call  to  the  Bar  of  any  solicitor  who  has  been  "  in  practice 
for  not  less  than  five  consecutive  years,  either  in  England  or  in  any 
colony  or  dependency,  but  who  in  either  case  was  admitted  in  England." 
If  any  such  solicitor  desires  to  take  advantage  of  this  rule  he  must,  in 
the  first  place,  give  at  least  twelve  months'  notice  in  writing  to  each  of 
the  four  Inns  of  Court,  and  to  the  Law  Society,  of  his  intention  to  seek 


444  SOLICITOR 

call  to  the  Bar,  and  produce  a  certificate  that  he  is  a  fit  and  proper 
person  to  be  called  to  the  Bar.  Such  certificate  must  be  signed,  if  his 
practice  was  in  England,  by  two  members  of  the  Council  of  the  Law 
Society,  and,  if  his  practice  was  in  a  colony  or  dependency,  by  the  Chief 
Justice  of  such  colony  or  dependency.  Next,  he  must  cease  to  be  a 
solicitor  and  then  enter  as  a  student  at  one  of  the  Inns  of  Court.  This 
he  can  do  at  any  time  during  the  currency  of  his  notice.  He  must  pay 
the  same  fees  as  are  payable  by  other  Bar  students,  make  the  usual 
deposit,  enter  into  the  usual  bond  for  commons,  and  pay  the  sum  of  £5, 5s. 
for  the  above-mentioned  notice,  in  addition  to  the  usual  student's  fees  on 
entrance  to  an  Inn  of  Court.  He  may  be,  and  generally  is,  exempted  by 
the  Masters  of  the  Bench  of  the  Inn  to  which  he  seeks  admission  from 
passing  the  examination  preliminary  to  admission.  When  the  twelve 
months  has  expired,  he  must  present  himself  for  the  Bar  examination. 
He  need  not  have  kept  any  terms  at  his  Inn.  He  must  pass  both  Parts  of 
this  examination.  He  cannot  present  himself  for  any  part  of  it  until  the 
twelve  months  has  elapsed.  '  He  can  then  be  called  to  the  Bar  without 
having  kept  any  terms.  Any  dealings  between  members  of  the  Bar 
and  solicitors  as  regards  sharing  costs  or  profits  in  any  shape  are  incom- 
patible with  the  discipline  of  the  Bar  (r.  15). 

III.  Eetainer  by  a  Client. 

Retainer  generally. — Ae  soon  as  a  solicitor  is  admitted  on  the  roll  and 
duly  qualified  to  practise,  he  is,  speaking  generally,  ready  to  accept  a 
retainer  from  a  client.  A  retainer  is  an  authority  given  to  a  solicitor  to 
act  on  behalf  of  a  client,  either  generally  or  in  relation  to  some  par- 
ticular matter  or  business.  It  may  be  given  either  to  a  firm  of  solicitors 
or  to  an  individual,  and  by  any  person  who  is  competent  to  contract. 
In  some  cases  the  retainer  of  a  solicitor  by  an  infant  may  be  justified  as 
a  "  necessary  "  {Helps  v.  Clayton,  1864,  17  C.  B.  N.  S.  553 ;  In  re  Jon£s, 
1883,  W.  N.  14) ;  and  in  the  case  of  a  married  woman  an  authority  by 
the  husband  may  in  some  cases  be  implied  {Re  Wing  field  &  Blew,  [1904] 
2  Ch.  p.  681).  Speaking  generally,  a  solicitor  may  be  retained  either  by 
word  of  mouth  or  in  writing;  but  for  his  own  protection  he  should 
obtain  a  written  retainer,  and  it  should  be  expressed  in  clear  and 
unmistakable  language,  particularly  if  the  client  is  ignorant  or  un- 
educated (^ray  V.  Kemp,  1884,  26  Ch.  D.  p.  172,  per  Chitty,  J.). 

A  written  retainer  is  essential — 

(1)  Where  it  amounts  to  an  agreement  not  to  be  performed  within 
a  year  {Eley  v.  Positive  Assurance  Co.,  1875,  1  Ex.  D.  20); 

(2)  Where  the  name  of  the  client  is  to  be  used  as  next  friend  or 
relator  in  an  action  (Order  16,  r.  20); 

(3)  Where  the  client  is  a  corporation ;  in  which  case,  moreover,  the 
retainer  must,  as  a  rule,  be  under  seal,  except  in  the  case  of  the  Cor- 
poration of  London  {Arnold  v.  Mayor  of  Poole,  1842,  4  Man.  &  G-.  860 ; 
61  R.  R.  664 ;  Newington  Local  Board  v.  Eldridge,  1879, 12  Ch.  D.  p.  360 ; 
Hunt  V.  Wimbledon  Local  Board,  1878,  3  C.  P.  D.  208 ;  4  ibid.  48 ;  but 
see  Lawford  v.  Billericay  Rural  District  Council,  [1903]  1  K.  B.  772). 
A  retainer  not  originally  under  seal  may  be  confirmed  by  subsequent 
sealing  {Brooks  v.  Torquay  Corporation,  [1902]  1  K.  B.  601). 

In  the  case  of  a  company  incorporated  under  the  Companies  Act, 
1862,  a  solicitor  may  be  appointed  on  its  behalf  by  any  person  acting 
under  the  authority  of  the  company ;  and  the  appointment  may  be  made 


SOLICITOR  445 

either  in  writing  or  by  parol,  according  to  the  mode  which  would  be 
valid  as  between  private  persons  (Companies  Act,  1867,  30  &  31  Vict. 
c.  131,  s.  37).  A  similar  provision  is  made  by  the  Companies  Clauses 
Consolidation  Act,  1845, 8  Vict.  c.  16,  ss.  95,  97,  in  the  case  of  companies 
governed  by  that  statute.  The  dissolution  of  a  company  revokes  the 
solicitor's  retainer  (Salton  v.  New  Beeston  Cycle  Co.,  [1900]  1  Ch.  43). 
As  to  retainer  by  promoters,  see  In  re  English  and  Colonial  Produce  Co., 
[1906]  2  Ch.  435.  As  to  the  employment  of  a  solicitor  by  the  liquidator 
of  a  company,  see  Companies  (Winding-up)  Act,  1890,  53  &  54  Vict. 
c.  63,  ss.  12  (4),  9  (9);  Ex  parte  Boaler,  [1893]  2  Q.  B.  p.  149;  and  as 
to  such  employment  by  a  trustee  in  bankruptcy,  see  Bankruptcy  Act, 
1883,  46  &  47  Vict.  c.  52,  ss.  57,  73 ;  Bankruptcy  Act,  1890,  53  &  54 
Vict.  c.  71,  s.  15  (3);  In  re  Duncan,  [1892]  1  Q.  B.  879  ;  In  re  Vavasour, 
[1900]  2  Q.  B.  309;  In  re  White,  [1902]  W.  N.  114.  In  a  pauper  case 
there  is  no  retainer  properly  so  called ;  the  Court  assigns  the  plaintifl*  a 
solicitor,  and  he  is  not  at  liberty  to  refuse  his  assistance  or  to  accept 
any  remuneration  from  the  client,  even  if  successful,  beyond  costs  out 
of  pocket  and  a  reasonable  allowance  for  office  expenses  and  clerks'  time 
{Carson  v.  Pickersgill  &  Sons,  1885,  14  Q.  B.  D.  859 ;  Johnsmi  v.  Lindsay 
&  Co.,  [1892]  A.  C,  110).  As  to  costs  where  a  pauper  appeals  to  the 
House  of  Lords,  see  In  re  Raphael,  [1899]  1  Ch.  853,  reversed  on  appeal 
on  the  facts,  68  L.  J.  Ch.  765 ;  81  L.  T.  479. 

If  a  writ  is  to  be  issued  or  proceedings  of  any  kind  commenced, 
a  special  authority  must  be  obtained  from  the  client,  and,  if  possible,  in 
writing ;  a  mere  general  authority  to  act  for  him  is  not  sufficient  {In  re 
James  Gray,  1869,  20  L.  T.  730 ;  Lord  v.  Kellett,  1833,  2  Myl.  &  K.  1 ; 
39  E.  E.  845 ;  Crossley  v.  Crowther,  1851,  9  Hare,  384).  No  special  form 
of  authority  is  necessary,  but  one  will  be  found  in  Daniell's  Chancery 
Forms,  5th  ed.,  p.  98.  But  though  no  express  authority  may  have  been 
given  before  action,  an  authority  may  be  implied  from  the  conduct  of 
the  client,  as  where  he  acquiesces  in  or  adopts  the  proceedings  {Gray  v. 
Wainman,  1823,  1  L.  J.  C.  P.  21 ;  Morgan  v.  Blyth,  [1891]  1  Ch.  p.  355). 
The  mere  fact  that  the  supposed  client  does  not  at  once  take  steps  to 
have  his  name  struck  out  is  not  equivalent  to  a  retainer  {Hall  v.  Laver, 
1842,  1  Hare,  571;  66  E.  R.  1158;  58  R.  R.  198).  A  country  soUcitor 
who  is  authorised  to  commence  an  action  may  of  course  employ  his  town 
agents  for  that  purpose  {Solley  v.  Wood,  1852,  16  Beav.  370 ;  51  E.  R. 
821),  but  they  should  state  on  the  writ  and  all  proceedings  that  they 
are  only  agents,  and  give  the  name  of  their  principal  {In  re  Scholes  & 
Sons,  1886,  32  Ch.  D.  245).  The  retainer  to  the  country  solicitor  does 
not  justify  an  action  in  which  the  town  agents  appear  as  the  solicitors 
on  the  record  (  Wray  v.  Kemp,  1884,  26  Ch.  D.  169).  An  action  com- 
menced by  a  solicitor  without  authority  will  be  dismissed  or  stayed,  and 
the  solicitor  will  be  ordered  to  pay  the  costs  of  all  parties  {Fricker  v. 
Van  Gi'utten,  [1896]  2  Ch.  649 ;  Gold  Beefs  Limited  v.  Dawson,  [1897] 
1  Ch.  115 ;  Geilinger  v.  Gihbs,  [1897]  1  Ch.  479).  Similarly,  an  appear- 
ance entered  for  a  defendant  without  his  authority  will  be  vacated  with 
costs  against  the  solicitor  {In  re  Gray,  Gray  v.  Coles,  1891,  65  L.  T.  743 ; 
In  re  Lloyd,  Allen  v.  Lloyd,  1879,  12  Ch.  D.  p.  449;  Salton  v.  Nen^ 
Beeston  Cycle  Co.,  [1900]  1  Ch.  43).  So  a  solicitor  may  be  ordered  to 
pay  the  costs  of  a  petition  presented  without  authority  (/w  re  Savage, 
1880,  15  Ch.  D.  557).  On  the  other  hand,  if  a  writ  be  issued  without 
the  privity  or  authority  of  the  solicitor  named  thereon,  all  proceedings 
thereon  will  be  stayed  (Order  7,  r.  1). 


446  SOLICITOK 

Joint  and  Separate  Retainers. — Where  a  solicitor  is  acting  on  behalf 
of  several  clients  his  retainer  may  be  either  joint,  or  separate,  or  joint 
and  separate. 

(1)  If  the  retainer  i?,  joint,  each  client  is  liable  in  solido  for  the  whole 
amount  of  the  bill  {In  re  ColqiiJioun,  1854,  5  De  G.,  M.  &  G.  35 ;  43  E.  R. 
781 ;  Watson  v.  Bow,  1874,  L.  E.  18  Eq.  680 ;  Burridge  v.  Bellew,  1875, 
32  L.  T.  807).  It  is,  however,  the  right  of  persons  jointly  liable  to  pay 
a  debt  to  insist  upon  being  sued  together  {Kendall  v.  Hamilton,  1879, 
4  App.  Cas.  p.  515,  per  Cairns,  L.C.).  If,  therefore,  one  of  the  clients  is 
sued  alone  on  a  joint  retainer  he  can  insist  on  the  others  being  made 
parties.  Eor  this  purpose  he  must  take  out  a  summons  promptly  {Billey 
V,  Bobinson,  1887,  20  Q.  B.  D.  155;  Wilson,  Sons  &  Co.  v.  Balcarres 
Brook  Steamship  Co.,  [1893]  1  Q.  B.  422;  Bobinson  v.  Geisel,  [1894] 
2  Q.  B.  685).  If  he  neglects  to  take  this  course,  and  the  action  pro- 
ceeds, the  plaintiff  can  recover  judgment  against  him  alone.  This 
judgment  will  be  a  complete  bar  to  any  action  by  the  solicitor  against 
the  others,  even  though  it  be  unsatisfied  {Kendall  v.  Hamilton,  1879, 
4  App.  Cas.  504).  If  one  of  the  clients  die  the  solicitor  can  only  sue 
the  survivors,  and  on  the  death  of  the  last  survivor  the  whole  liability 
devolves  upon  his  representatives  {Bichards  v.  Heather,  1817,  1  Barn. 
&  Aid.  29). 

(2)  If  the  retainers  are  separate,  each  client  is  liable  for  so  much  of 
the  costs  as  relate  to  himself  severally  and  for  a  proportionate  part 
of  the  general  costs,  but  for  nothing  beyond  this  {In  re  Colqiihoun,  ubi 
supra).  Where  in  a  suit  by  a  shareholder  against  a  joint-stock  company, 
its  seven  directors  and  the  secretary,  the  defendants  all  appeared  by  the 
same  solicitor  and  joined  in  their  defence,  but  afterwards  signed  three 
separate  retainers  to  the  solicitors  in  the  following  terms : — "  You  having 
up  to  the  present  time  conducted  the  defence  of  this  suit  on  behalf  of 
all  the  defendants,  and  in  pursuance  of  their  instructions  in  that  behalf, 
we,  the  undersigned,  do  hereby  confirm  such  instructions  and  request 
you  to  continue  such  defence,  and  to  take  such  steps  as  you  may  con- 
sider necessary  in  the  matter,"  it  was  held  that  the  retainers  were 
separate  and  not  joint,  and  consequently  that  the  assets  of  the  company 
which  had  gone  into  liquidation  were  liable  for  one-ninth  only  of  the 
costs  {In  re  Allen,  Davies  v.  Chatwood,  1879, 11  Ch.  D.  244;  and  see  In 
re  Salaman,  [1894]  2  Ch.  201 ;  Mortgage  Ins2orance  Corporation  v.  Canadian 
Agricultural  Co.,  [1901]  2  Ch.  377). 

(3)  If  the  retainer  is  joint  and  sepiarate,  the  clients  together,  and  each 
of  them  separately,  are  liable  for  the  whole  bill.  And  even  where  the 
retainer  is  joint  in  form  the  Court  may  look  into  the  circumstances  to 
see  whether  it  was  not  really  intended  that  it  should  be  joint  and 
separate  {Furlong  v.  Scallan,  1875,  Ir.  R.  9  Eq.  202). 

Where  several  persons  give  separate  retainers  to  a  solicitor  to  take 
proceedings  on  behalf  of  all,  the  strict  right  of  each  of  them  is  to  have 
the  solicitor's  bill  taxed  without  serving  any  person  other  than  the 
solicitor ;  but,  in  order  to  prevent  multiplicity  of  taxations,  the  Court 
will  as  far  as  possible  direct  a  single  taxation  in  the  presence  of  all  the 
parties  interested  {In  re  Salaman,  [1894]  2  Ch.  201). 

Determination  of  Betainer. — The  relation  of  solicitor  and  client  may 
be  determined  at  any  time  by — 
(i.)  The  death  of  either  party ; 
(ii.)  The  client  withdrawing  his  retainer ;  or 


SOLICITOR  447 

(iii.)  The  solicitor  declining  to  act  any  longer  for  the  client ;  in  other 
words,  the  client  may  discharge  the  solicitor,  or  the  solicitor  may  dis- 
charge himself.  The  distinction  is  important  with  reference  to  the 
solicitor's  lien,  the  general  rule  being  that  if  the  solicitor  discharges 
himself  his  lien  is  gone,  though  it  is  otherwise  where  he  is  discharged 
by  the  client  (see  ipost,  p.  497). 

(i.)  By  Death. — The  death  of  either  client  or  solicitor  terminates  the 
relation  between  them.  The  death  of  the  client  revokes  the  retainer 
{Whitehead  v.  Lord,  1852,  7  Ex.  Eep.  691);  and  the  solicitor  cannot 
claim  items  of  costs  incurred  after  the  death,  though  in  a  pending  suit 
and  without  notice  of  the  death  {Pool  v.  Pool,  1889,  58  L.  J.  Prob.  67). 
On  the  death  of  the  solicitor,  however,  his  executor  will  be  entitled  to 
the  costs  earned  during  his  lifetime  {In  re  Smith,  1861,  9  W.  E.  396), 
though  this  seems  to  have  been  doubted  in  a  subsequent  case  ( Under- 
wood V.  Lewis,  [1894]  2  Q.  B.  306). 

(ii.)  By  Act  of  the  Client. — The  client  can  withdraw  his  retainer  and 
discharge  his  solicitor  at  any  moment  that  he  may  think  fit,  provided 
he  is  the  real  and  not  merely  a  nominal  client  {Montforts  v.  Marsden, 
[1895]  1  Ch.  11 ;  and  see  Heinrich  v.  Sutton,  1871,  L.  R.  6  Ch.  220).  If 
there  is  a  contract  between  them  for  the  employment  of  the  solicitor  for 
a  particular  business  or  a  particular  period,  and  there  is  a  breach  of  that 
contract,  the  solicitor  will  have  his  remedy  in  the  ordinary  way,  but  he 
cannot  insist  on  acting  for  the  client  against  the  client's  will  {In  re 
Galland,  1885,  31  Ch.  D.  296,  p.  300,  per  Chitty,  J.;  Saffrm  Walden 
Building  Society  v.  Rayner,  1880,  14  Ch.  D.  406).  The  discharge  need 
not  be  express.  Thus,  if  the  client  gives  notice  to  change  solicitors  in 
an  action  {Webster  v.  Le  Hunt,  1861,  9  W.  R.  884),  or  becomes  bank- 
rupt, and  his  trustee  in  bankruptcy  goes  to  a  different  solicitor  {In  re 
Moss,  1866,  L.  R.  2  Eq.  p.  348,  per  Romilly,  M.R.),  or  if  the  client  by 
his  conduct  renders  it  impossible  for  the  solicitor  to  act  for  him  any 
longer  {Steele  v.  Scott,  1828,  2  Hog.  141 ;  and  see  Underwood  v.  Lewis, 
[1894]  2  Q.  B.  p.  314,  per  A.  L.  Smith,  L.J.),  it  will  be  considered  a 
discharge  by  the  client.  As  to  the  continued  liability  of  dormant 
partners  in  a  firm  for  costs  incurred  after  dissolution  of  the  partnership, 
see  Court  v.  Berlin,  [1897]  2  Q.  B.  396.  If  a  party  to  any  cause  or 
matter  changes  his  solicitor  (which  he  is  at  liberty  to  do  without  any 
order),  he  must  give  notice  to  that  efifect,  and  unless  he  does  so  the 
former  solicitor  will  be  considered  as  still  representing  him  (see  Order  7, 
r.  3;  Annual  Pr.,  1909,  p.  40,  and  cases  there  cited). 

(iii.)  By  Act  of  the  Solicitor. — The  right  of  a  solicitor  to  discharge 
himself  is  by  no  means  so  absolute  as  that  of  the  client  to  discharge 
him.  He  may,  indeed,  under  certain  circumstances,  decline  to  act 
further  for  the  client,  but  he  "cannot  disengage  himself  from  the 
relation  of  solicitor  by  cutting  a  clean  line  between  himself  and  his 
client  at  the  exact  moment  at  which  he  ceases  to  be  solicitor.  He 
must  wind  up  properly  the  relationship  of  solicitor  and  client "  {Macleod 
V.  Jones,  1883,  24  Ch.  D.  p.  303,  per  Bowen,  L.J.). 

A  solicitor  who  is  retained  to  conduct  or  defend  an  action  in  the 
nature  of  a  common  law  action  is,  as  a  general  rule,  bound  to  carry  it 
on  till  its  termination,  for  it  is  an  entire  contract.  He  is  not  entitled, 
therefore,  to  throw  it  up  at  any  moment  on  simply  giving  a  reasonable 
notice ;  on  a  reasonable  notice,  however,  and  for  a  reasonable  cause,  e.g. 
the  refusal  of  the  client  to  supply  him  with  the  requisite  funds,  he  may 
retire  and  recover  his  costs  up  to  that  time  (  Underwood  v.  Lewis,  [1894] 


448  SOLICITOR 

2  Q.  B.  306 ;  Court  v.  Berlin,  [1897]  2  Q.  B.  396 ;  In  re  Wingfield  & 
Blew,  [1904]  2  Ch.  p.  671).  This  rule  does  not,  however,  apply  to  such 
matters  as  bankruptcy,  administration,  or  winding-up ;  in  business  of 
that  kind  a  series  of  natural  breaks  occur,  and  it  would  seem  that  the 
solicitor  may  take  advantage  of  such  a  break  to  retire  (giving,  of  course, 
a  reasonable  notice),  and  will,  nevertheless,  be  entitled  to  his  costs  down 
to  that  time  {In  re  Hall  &  Barker,  1878,  9  Ch.  D.  538 ;  In  re  Homer  & 
Haslani,  [1893]  2  Q.  B.  286,  i^ost,  p.  490 ;   Underwood  v.  Lewis,  supra). 

A  discharge  by  the  solicitor  need  not  (any  more  than  a  discharge  by 
the  client)  necessarily  be  express.  Thus  if  a  client  is  employing  a  firm 
of  solicitors  a  dissolution  of  their  partnership  operates  as  a  discharge  of 
the  client  {Rawlinson  v.  Moss,  1861,  30  L.  J.  Ch.  797 ;  Scott  v.  Fleming, 
1845,  9  Jur.  1085) ;  and  if  a  solicitor  is  in  custody  and  consequently 
incapable  of  practising  {In  re  Williams,  1860,  28  Beav.  465;  54  E.  K, 
444);  or  if  he  is  guilty  of  misconduct  or  irregularity  {In  re  Smith,  1841, 
4  Beav.  309 ;  49  E.  E.  358 ;  55  R  R  88) ;  or  if  he  neglects  {RoUns  v. 
Goldingham,  1872,  L.  R.  13  Eq.  440 ;  Bluck  v.  Lovering  &  Co.,  1887,  35 
W.  R.  232),  or  declines  {Hannaford  v.  Hannaford,  1871,  24  L.  T.  86 ; 
Wilson  v.  Emmett,  1854,  19  Beav.  233 ;  52  E.  R.  338)  to  continue  a 
suit,  or  assigns  over  the  business  to  another  solicitor  {Colegrave  v. 
Manley,  1823,  Turn.  &  R.  400) ;  or  if  he  or  his  firm  become  bankrupt 
{In  re  Moss,  1866,  L.  R,  2  Eq.  345) ;  he  is  considered  to  have  discharged 
himself;  but  the  mere  fact  that  a  solicitor's  circumstances  are  em- 
barrassed will  not  amount  to  a  discharge  {In  re  Smith,  1861,  9  W.  R. 
396). 

IV.  Pkivileges  of  a  Solicitor. 

1.  Every  solicitor  who  has  been  duly  admitted,  whose  name  is 
entered  on  the  roll  of  solicitors,  who  has  taken  out  his  certificate  for 
the  current  year,  and  who  is  not  in  prison  (Sol.  Act,  1843,  s.  31),  is 
entitled  to  give  advice  on  all  matters  of  law,  to  do  all  kinds  of  convey- 
ancing business,  to  act  on  behalf  of  another  in  all  Courts,  whether  of 
civil  or  criminal  jurisdiction,  and  to  charge  for  such  services  according 
to  the  recognised  scale  of  charges.  He  may  practise  in  every  Division 
of  the  High  Court  of  Justice,  in  every  inferior  Court  (Sol.  Act,  1843, 
s.  27),  in  the  ecclesiastical  Courts  (Sol.  Act,  1877,  s.  17),  in  the  Court  of 
Appeal,  in  the  Privy  Council,  and  in  the  House  of  Lords. 

2.  A  solicitor  has  a  right  to  appear  as  an  advocate  for  his  client 
before  justices  or  any  magistrate,  before  a  coroner,  under-sheriff  or 
secondary,  before  any  revising  barrister,  and  in  every  County  Court 
(even  in  revenue  matters,  59  &  60  Vict.  c.  28,  s.  38 ;  and  before  the 
Income  Tax  Commissioners,  61  &  62  Vict.  c.  10,  s.  16).  To  this  there 
is  one  exception :  if  a  solicitor  be  appointed,  as  he  now  may,  a  justice 
of  the  peace  for  any  county,  neither  he  nor  any  partner  of  his  may 
practise,  directly  or  indirectly,  before  the  justices  for  that  county 
or  any  borough  within  the  county  (6  Edw.  vii.  c.  16,  s.  3).  A 
solicitor  has,  however,  no  right  of  audience  in  the  Mayor's  Court, 
London,  the  High  Court  of  Justice,  the  Court  of  Appeal,  the  Privy 
Council,  or  the  House  of  Lords,  save  only  in  chambers,  and  some- 
times in  bankruptcy  matters  (but  see  Doxford  &  Sons,  Ltd.  v.  Sea 
Shipping  Co.,  Ltd.,  1897,  14  T.  L.  R.  111).  He  can  only  be  heard  in 
the  Court  of  Quarter  Sessions  for  those  counties  in  which  no  bar 
regularly  attends,  such  as  Cornwall.  A  solicitor  cannot  appear  in  the 
County  Court  as  advocate  for  the  client  of  another  solicitor.     He  must 


SOLICITOE  449 

be  the  solicitor  "acting  generally  in  the  action  or  matter  for  such 
party  "  {Ex  parte  Broadhouse,  1867,  L.  E.  2  Ch.  655 ;  R.  v.  Judge  of 
County  Court  of  Oxfordshire,  [1894]  2  Q.  B.  440).  The  law  is  opposed 
to  the  creation  of  a  class  of  solicitor-advocates  to  act  in  Court  only  for 
the  litigants.  "  There  can  only  be  one  attorney  for  a  party  at  a  time  " 
{jper  Blackburn,  J.,  in  B.  v.  Spooner,  1868,  18  L.  T.,  at  p.  326). 

All  words  spoken  by  a  solicitor,  when  properly  acting  in  Court  as 
an  advocate,  are  absolutely  privileged  {Mackay  v.  Ford,  1860,  5  H.  &  N. 
792 ;  Munster  v.  Lamb,  1883,  11  Q.  B.  D.  588). 

3.  Various  statutory  enactments  have  given  to  solicitors  and  other 
legal  practitioners  a  g-wasi-monopoly  of  legal  business.  No  person  who 
is  not  a  duly  qualified  and  enrolled  solicitor  can  act  as  a  solicitor,  or 
sue  out  any  process,  or  carry  on  or  defend  any  action  (Sol.  Act,  1843, 
8,  2).  If  he  does  so,  he  commits  a  contempt  of  Court  (Sol.  Act,  1860, 
8.  26).  Again,  by  sec.  12  of  the  Sol.  Act,  1874,  any  person  who  wilfully 
and  falsely  pretends  to  be  or  takes  or  uses  any  name,  title,  addition, 
or  description  implying  that  he  is  duly  qualified  to  act  as  a  solicitor,  or 
that  he  is  recognised  by  law  as  so  qualified,  is  guilty  of  an  offence  under 
the  Act,  and  liable  to  a  penalty  not  exceeding  the  sum  of  £10  for  each 
ofience.  By  sec.  2  of  the  Legal  Practitioners  Act,  1877,  40  &  41  Vict, 
c.  62,  any  person,  not  being  a  serjeant-at-law,  barrister-at-law,  certificated 
solicitor,  proctor,  notary  public,  certificated  conveyancer,  special  pleader, 
or  a  draftsman  in  equity,  who  for  or  in  expectation  of  any  fee,  gain,  or 
reward,  either  directly  or  as  the  agent  of  any  other  person,  whether  a 
qualified  practitioner  or  not,  takes  instructions  for  or  draws  or  prepares 
any  papers  on  which  to  found  or  oppose  a  grant  of  probate  or  of  letters 
of  administration,  is  guilty  of  an  offence  within  sec.  12  of  the  Sol.  Act, 
1874,  just  cited.  And  by  sec.  43  of  the  Stamp  Act,  1891,  54  &  55 
Vict.  c.  39,  every  person  who  in  any  part  of  the  United  Kingdom 
directly  or  indirectly  acts  or  practises  as  a  solicitor  or  law  agent  in  any 
Court,  or  as  a  notary  public  without  having  in  force  at  the  time  a  duly 
stamped  certificate,  incurs  a  penalty  of  £50.  As  to  what  is  "  acting 
as  a  solicitor,"  see  Law  Society  v.  Waterlow  Bros,  and  Layton,  1883, 
8  App.  Cas.  407 ;  In  re  Louis,  [1891]  1  Q.  B.  649 ;  In  re  Panton,  [1901] 
P.  239 ;  In  re  Ainsworth,  [1905]  2  K.  B.  103.  And  anyone  in  whose 
name  proceedings  are  taken  in  any  Court  will  be  deemed  to  have 
acted  in  that  Court,  unless  the  proceeding  is  set  aside  by  the 
Court  as  irregular,  or  unless  the  contrary  is  otherwise  satisfactorily 
proved  by  him.  Moreover,  every  person  who  (not  being  a  barrister 
or  a  duly  certificated  solicitor,  law  agent,  writer  to  the  signet,  notary 
public,  conveyancer,  special  pleader,  or  draftsman  in  equity),  either 
directly  or  indirectly,  for  or  in  expectation  of  any  fee,  gain,  or  reward, 
draws  or  prepares  any  instrument  relating  to  real  or  personal  estate, 
or  any  proceeding  in  law  or  equity  (54  &  55  Vict.  c.  39,  s.  44),  or 
any  instrument  of  transfer  or  charge,  or  an  application  to  register 
restrictive  conditions,  or  to  alter  or  discharge,  or  alter  the  priority  of 
a  registered  charge,  or  any  other  instrument  prescribed  by  the  Land 
Transfer  Act,  1897,  60  &  61  Vict.  c.  65,  s.  10,  incurs  a  fine  not 
exceeding  £50,  recoverable  before  a  Court  of  summary  jurisdiction, 
unless  he  is  a  public  officer  drawing  or  preparing  instruments  and 
applications  in  the  course  of  his  duty,  or  a  person  employed  merely 
to  engross  any  instrument  or  application.  The  word  "  instrument " 
in  the  earlier  section  (54  &  55  Vict.  c.  39,  s.  44),  does  not,  however, 
include — 

VOL.  XIII.  29 

/ 


450  SOLICITOR 

(a)  A  will  or  other  testamentary  instrument ;  or 
(J)  An  agreement  under  hand  only ;  or 

(c)  A  letter  or  power  of  attorney ;  or 

(d)  A  transfer  of  stock  containing  no  trust  or  limitation. 

4.  Where  the  trustees  of  a  settlement  apply,  on  the  death  of  a  tenant 
for  life,  for  the  registration  of  a  successor  under  the  settlement,  they 
and  their  solicitor  must  make  a  statutory  declaration,  to  the  effect  pre- 
scribed by  the  rules,  in  support  of  the  application ;  see  Land  Transfer 
Eules,  1903,  r.  187;  and  see  Land  Transfer  Act,  1875,  38  &  39  Vict.  c. 
87,  s.  70,  as  to  evidence  to  be  given  by  a  solicitor  when,  on  registration 
of  land,  an  examination  of  title  is  required.  So,  too,  any  bill  of  sale 
which  is  not  given  to  secure  the  payment  of  money  must  still  be  attested 
by  a  solicitor  of  the  Supreme  Court  under  sec.  10  of  the  Bills  of  Sale 
Act,  1878  (Tuck  v.  Southern  Counties  Deposit  Bank,  1889, 42  Ch.  D.  471). 

5.  A  solicitor  is  not  liable  for  any  act  done  by  him  in  the  proper 
course  of  procedure  under  a  regular  judgment  of  a  Court  of  competent 
jurisdiction  {Sowell  v.  Champion,  1838,  6  Ad.  &  E.  407;  45  R  R.  514; 
Cooper  V.  Harding,  1845,  7  Q.  B.  928 ;  68  R.  R.  599).  But  he  may 
render  himself  liable  if  he  takes  upon  himself  to  unduly  interfere  in  the 
matter,  e.g.  by  giving  special  directions  to  the  officer  of  the  Court  where 
to  levy  execution  {Bowles  v.  Senior,  1846,  8  Q.  B.  677 ;  70  R.  R.  577).  Or 
if  he  illegally  detains  deeds  till  a  claim  is  satisfied,  which  his  client  had 
no  right  to  make  (  Wakefield  v.  Neivbon,  1844,  6  Q.  B.  276 ;  66  R.  R.  379) ; 
and  in  this  case  he  will  not  escape  liability,  even  though  he  has  paid 
over  the  money  to  his  client  {Gates  v.  Hudson,  1851,  6  Ex.  Rep.  346). 

6.  All  communications  passing  between  a  solicitor  and  his  client  (or 
an  intending  client,  Browne  v.  Btinn,  1893,  6  R.  67,  H.  L.),  and  all  com- 
munications made  by  a  solicitor  in  defence  of  his  client's  rights,  or 
asserting  for  him  any  title  which  he  honestly  believes  his  client  to 
possess,  are  primd  facie  privileged,  although  the  words  employed  be 
defamatory  of  a  third  person  {Hargrave  v.  Le  Breton,  1769,  4  Burr.  2422 ; 
Steward  v.  Young,  1870,  L.  R.  5  C.  P.  122).  Letters  written  by  a  solicitor 
in  the  interest  of  his  client  to  a  person  from  whom  the  client  claims 
money  or  other  relief,  or  written  in  reply  to  a  threat  of  legal  proceed- 
ings, are  primd  facie  privileged  {Campbell  v.  Cochrane,  1906,  1  F.  205 
(Ct.  of  Sess.)).  And  this  privilege  will  not  be  lost  if  the  solicitor  has  a 
copy  made  of  such  letters  in  his  office  {Boxsius  v.  GoUet  Frtres,  [1894] 
1  Q.  B.  842).  So  where  a  solicitor,  acting  on  behalf  of  his  client,  gave 
written  notice  to  an  auctioneer  not  to  part  with  the  proceeds  of  the  sale 
of  certain  goods  which  A.  had  instructed  him  to  sell,  on  the  ground  that 
A.  had  committed  an  act  of  bankruptcy  upon  which  an  order  in  bank- 
ruptcy might  be  made  against  him,  and  A.  brought  an  action  against  the 
solicitor  for  libel,  it  was  held  that  the  occasion  was  privileged,  since  the 
solicitor  was  acting  in  the  ordinary  course  of  his  duty  to  his  client,  and 
the  occasion  would  have  been  privileged  if  the  client  himself  had  written 
the  letter  {Baker  v.  Carrick,  [1894]  1  Q.  B.  838 ;  and  see  Blackham  v.  Ftcgh, 
1846,  2  C.  B.  611 ;  69  R.  R.  555). 

7.  A  solicitor  is  privileged  from  disclosing  any  information  or  pro- 
ducing any  document  which  he  has  obtained  professionally  on  behalf 
of  his  client.  The  privilege  applies  to  verbal  as  well  as  written 
communications.  But  it  is  the  privilege  of  the  client,  and  can  be 
waived  by  him.  And  when  in  an  action  it  is  alleged  with  some 
show  of  reason  that  the  defendant  has  been  guilty  of  a  crime,  or  of 
fraud  not  amounting  to  a  crime,  communications  between  him  and 


SOLICITOR  451 

his  solicitor  relating  to  the  alleged  crime,  or  fraud,  or  to  its  subject- 
matter,  are  not  privileged  from  production  merely  because  they  passed 
between  solicitor  and  client,  even  though  it  be  not  alleged  that  the 
solicitor  was  a  party  to  the  alleged  crime  or  fraud  (E.  v.  Cox,  1884, 
14  Q.  B.  D.  153 ;  Williams  v.  Quebrada,  [1895]  2  Ch.  751 ;  Bullivant 
v.  A.-G.  for  Victoria,  [1901]  A.  C.  196).  Once  a  communication  or 
document  is  privileged  it  is  always  privileged,  whether  made  with 
reference  to  the  existing  action  or  to  a  previous  one  {Bullock  v.  Corry, 
1878,  3  Q.  B.  D.  356 ;  Branford  v.  Branford,  1878,  4  P.  D.  72 ;  Pearce 
V.  Foster,  1885, 15  Q.  B.  D.  114 ;  In  re  H.  W.  Strachan,  [1895]  1  Ch.  439). 
A  solicitor  may  be  asked  whether  a  certain  document  is  or  is  not  in  his 
possession,  although  its  contents  may  be  privileged  {Divyer  v.  Collins, 
1852,  7  Ex.  Rep.  639 ;  21  L.  J.  Ex.  225) ;  but  he  cannot  be  compelled  to 
state  from  whom  he  received  it  {In  re  London  and  North  Western  Bank, 
1902,  50  W.  R.  386).  And  see  Discovery,  Vol.  IV.  p.  608 ;  Documents, 
Discovery  of,  ibid.  p.  688 ;  and  Evidence,  Vol.  V.  p.  378. 

8.  A  solicitor  whose  costs  are  unpaid  has  a  right  to  retain  his  client's 
papers  in  his  possession  as  against  the  client  and  persons  representing 
him ;  but  as  against  the  Court  or  third  parties  he  has  no  greater  right  to 
refuse  production  of  such  documents  than  his  client  would  have  if  they 
were  in  his  possession  {In  re  Hawkes,  [1898]  2  Ch.  1 ;  78  L.  T.  336 ;  and 
see  Solicitor's  Lien,  post,  p.  494). 

9.  A  solicitor  has  certain  personal  privileges.  He  is  exempted  from 
serving  on  any  jury,  even  a  coroner's  jury  {In  re  Button,  [1892]  1  Q.  B. 
486).  He  cannot  be  compelled  against  his  will  to  serve  as  a  mayor, 
alderman,  or  sheriff,  or  as  an  overseer  or  churchwarden,  or  in  the  militia. 
On  the  other  hand,  he  is  eligible  for  a  great  many  offices  and  appoint' 
ments,  such  as  Registrar,  Vestry  Clerk,  Commissioner  for  Oaths  (52 
&,  53  Vict.  c.  10),  etc.,  etc.  He  formerly  had  also  two  personal  privileges, 
which,  though  interesting  to  the  antiquarian,  are  now  of  little  practical 
value.  He  could  not  be  arrested  on  civil  process  going  to  or  returning 
from  a  Court  in  which  he  had  business  for  a  client  {In  re  Freston,  1883, 
11  Q.  B.  D.  545).  But  arrest  on  mesne  process  is  now  practically  obsolete. 
He  was  also  entitled  to  sue  in  his  own  Court,  and  could  not  be  sued  in 
any  other.  But  now  all  Courts  are  his  {Day  v.  Ward,  1886,  17  Q.  B.  D. 
703 ;  Blair  and  Another  v.  Eisler,  1888,  21  Q.  B.  D.  185). 

V.  Powers  of  a  Solicitor. 

A  solicitor  has  a  very  extensive  authority,  especially  in  litigious 
matters.     He  can  bind  his  client  in  many  ways. 

1.  If  the  solicitor  on  the  record  make  an  admission  in  an  action,  this 
binds  his  client,  unless  it  be  expressly  made  "  without  prejudice  "  {Gains- 
ford  v.  Grammar,  1809,  2  Camp.  9 ;  11  R.  R.  648). 

2.  A  solicitor  may  compromise  an  action  on  such  terms  as  he  thinks 
right,  unless  his  client  expressly  forbids  him  so  to  do  {Matthews  v. 
Munster,  1887,  20  Q.  B.  D.  141 ;  In  re  West  Devon  Great  Consols,  1888, 
38  Ch.  D.  51),  so  long  as  the  compromise  does  not  include  or  affect 
matters  outside  the  action  {Kempshall  v.  Holland,  1895,  14  R.  336). 
And  the  terms  of  such  a  compromise  will  be  strictly  enforced,  if 
necessary,  by  an  order  of  the  Court,  although  the  client  subsequently 
object  to  them  {Tardrew  v.  Brook,  1833,  5  Barn.  &  Adol.  880).  But 
a  solicitor  employed  to  act  for  a  client  in  regard  to  his  claim  against  a 
third  person  has,  before  action  brought,  no  implied  authority  to  effect  a 


452  SOLICITOE 

compromise  {Macaulay  v.  Policy,  [1897]  2  Q.  B.  122).  And  at  no  stage 
of  the  proceedings  may  the  solicitor  compromise  the  action  against  the 
express  directions  of  his  client ;  for  the  client,  and  not  the  solicitor,  is 
dominus  litis  {Fray  v.  Vowles,  1859, 1  El.  &  El.  839 ;  28  L.  J.  Q.  B.  232). 
Indeed,  if  the  solicitor  compromises  the  action  against  the  express 
directions  of  his  client,  he  will  be  liable  to  an  action,  at  least  for 
nominal  damages,  although  the  compromise  be  really  for  the  benefit 
of  the  client  {Butler  v.  Knight,  1867,  L.  E.  2  Ex.  109). 

3.  A  solicitor  has,  to  a  like  extent,  power  to  refer  an  action  to  arbitra- 
tion {Smith  V.  Troup,  1849,  7  C.  B.  757 ;  78  K.  E.  824).  No  authority 
under  seal  is  necessary  for  this  purpose,  even  though  his  client  be 
a  corporation  {Faviell  v.  E.  C.  Ely.  Co.,  1848,  2  Ex.  Eep.  344 ;  76  E.  E. 
615). 

4.  So,  too,  during  the  progress  of  an  action,  service  of  all  notices  and 
communications  upon  the  solicitor  will  bind  the  client  (Order  31,  r.  22  ; 
Order  67,  r.  2 ;  Pike  v.  Stephens,  1848, 12  Q.  B.  465 ;  76  E.  E.  316 ;  Bio^d 
V.  Bass,  1843,  6  Man.  &  G.  143 ;  64  E.  E.  731);  but  not  a  mere  verbal 
intimation  given  to  a  clerk  of  the  solicitor  (Pennell  v.  Stephens,  1849, 
7  C.  B.  987 ;  78  E.  E.  893).  And,  generally,  the  client  is  bound  by  and 
liable  for  all  acts  of  his  solicitor  done  in  the  action  in  the  regular  course 
of  practice,  and  without  fraud,  although  contrary  to  the  client's  orders 
{Latuch  V.  Pasherante,  1696,  1  Salk.  86 ;  Bates  v.  Pillinc),  1826,  6  Barn. 
&  Cress.  38).  But  he  is  not  criminally  responsible  for  letters  written  by 
the  solicitor,  unless  he  expressly  instructed  his  solicitor  so  to  write 
{R.  V.  Downer,  1880,  43  L.  T.  445).  And  he  is  not  liable  for  any  wilful 
trespass  committed  by  his  solicitor,  or  for  any  act  of  his  which  is  outside 
the  usual  and  regular  procedure  of  the  Courts. 

5.  At  any  time  during  the  progress  of  an  action  for  a  debt,  and,  pre- 
sumably, from  the  time  when  he  first  applies  for  the  money  till  judgment 
is  satisfied  {Butler  v.  Knight,  1867,  L.  E.  2  Ex.  109,  113),  the  solicitor  on 
the  record  has  authority  to  receive  payment  or  tender  of  the  debt,  and 
payment  or  tender  to  him  is  equivalent  to  payment  or  tender  to  the 
plaintiff  himself.  In  other  words,  the  payment  to  the  solicitor  discharges 
the  debtor,  and  the  client's  only  remedy  is  to  sue  the  solicitor  for  moneys 
had  and  received  to  his  use.  But  payment  to  a  clerk  or  agent  of  the 
plaintiffs  solicitor  is  not,  as  a  rule,  a  good  payment  to  the  plaintiff  (  Yates 
V.  Freckleton,  1781,  2  Doug.  623) ;  nor,  of  course,  is  payment  to  a  wholly 
unauthorised  solicitor  {Rolson  v.  Eaton,  1785,  1  T.  E.  62). 

6.  In  non-litigious  matters  the  authority  of  the  solicitor  is  more 
restricted.  It  depends  largely  on  the  nature  of  his  retainer.  Still,  on 
a  sale  of  land  by  auction,  the  payment  of  the  deposit  to  the  vendor's 
solicitor  is  equivalent  to  a  payment  to  the  vendor  {Ellis  v.  Goulton,. 
[1893]  1  Q.  B.  350 ;  and  see  Biggs  v.  Bree,  1882,  51  L.  J.  Ch.  263,  2^ost, 
p.  468).  Prior  to  the  Conveyancing  Act,  1881,  a  solicitor  had  no  implied 
authority  to  receive  the  purchase-money  on  the  completion  of  a  convey- 
ance; but  now,  by  sec.  56  of  that  Act,  where  a  solicitor  produces  a  deed 
which  has  in  its  body,  or  indorsed  upon  it,  a  receipt  for  the  consideration- 
money,  and  the  deed  is  executed  or  the  indorsed  receipt  is  signed  by  the 
person  entitled  to  receive  the  money,  the  deed  is  a  sufficient  authority 
for  payment  to  that  solicitor  (see  King  v.  Smith,  [1900]  2  Ch.  425) ;  and 
see  sec.  17  of  the  Trustee  Act,  1893,  56  &  57  Vict.  c.  53.  But  even 
in  cases  that  come  under  those  sections  the  solicitor  has  no  implied 
authority  to  hand  over  the  deeds  in  exchange  for  a  cheque  {Pape  v. 
Westacott,  [1894]  1  Q.  B.  272 ;  Blumberg  v.  L'tfe,  etc.,  Corporation,  [1897] 


SOLICITOE  453 

1  Ch.  171 ;  [1898]  1  Ch.  27).  A  solicitor  has,  moreover,  no  implied 
authority  to  alter  the  bargain  which  his  client  has  made  by  consenting 
to  terms  to  which  his  client  has  not  agreed,  or  by  waiving  terms  on 
which  his  client  insists.  The  written  approval  by  a  solicitor  of  the 
form  of  a  draft  lease,  or  conveyance,  is  not  a  signature  by  an  agent 
"thereunto  lawfully  authorised"  sufficient  to  satisfy  the  Statute  of 
Frauds  {Forster  v.  Rowland,  1861,  7  H.  &  N".  103 ;  30  L.  J.  Ex.  396 ; 
Smith  v.  Webster,  1876,  3  Ch.  1).  49).  And  where  a  solicitor  is 
employed  not  to  negotiate,  but  merely  to  reduce  a  contract  into 
writing,  or  to  carry  it  into  effect  by  drafting  the  proper  instruments, 
notice  to  him  of  a  fact  is  not  constructive  notice  to  his  client  {Saffron 
Walden  Building  Society  v.  Rayner,  1880,  14  Ch.  D.  406 ;  and  see  sec.  3 
of  the  Conveyancing  Act,  1882,  45  &  46  Vict.  c.  39 ;  In  re  Cousins,  1886, 
31  Ch.  D.  671 ;  Bailey  v.  Barnes,  [1894]  1  Ch.  25 ;  Thome  v.  Heard  & 
Marsh,  [1895]  A.  C.  495). 

VI.  Disabilities  of  a  Solicitor. 

1.  A  solicitor  cannot,  as  a  rule,  fix  his  own  price  for  his  labour.  The 
law  fixes  for  him  what  payment  he  may  receive.  The  value  of  each  item 
of  his  work  is  either  determined  by  a  statutory  scale  of  charges  or  is 
liable  to  be  appraised  by  an  officer  of  the  Court.  And  he  cannot  recover 
more  from  his  client  than  the  law  thus  allows  (see  Solicitor's  Re- 
muneration, post,  p.  470).  A  solicitor  will  not  be  allowed  to  retain  a 
commission  or  any  other  secret  advantage  which  he  obtains  while  acting 
for  a  client. 

2.  A  solicitor  may  not  insist  on  being  paid  as  soon  as  his  work  is 
done.  He  must  first  deliver  to  his  client  a  bill  of  costs  :  a  statement 
setting  out  what  work  he  has  done  in  full  detail,  and  stating  what 
amount  he  charges  for  each  item  of  his  work.  And  then  he  must 
wait  a  full  calendar  month  after  delivery  of  the  bill  before  he  can 
claim  payment  by  issuing  a  writ  (Sol.  Act,  1843,  ss.  37,  48).  One 
exception  to  this  rule  has,  however,  been  made  by  sec.  2  of  the  Legal 
Practitioners  Act,  1875,  38  &  39  Vict.  c.  79,  which  enables  any  judge 
of  any  superior  Court  of  law  or  equity  to  authorise  a  solicitor  to  com- 
mence an  action  for  the  recovery  of  his  fees,  although  one  month  has 
not  expired  since  he  delivered  his  bill  of  costs,  if  the  judge  is  satisfied 
that  there  is  probable  cause  for  believing  that  the  client  is  about  to  quit 
England,  or  to  become  a  bankrupt,  or  a  liquidating  or  compounding 
debtor,  or  to  take  any  other  steps,  or  do  any  other  act  which,  in  the 
opinion  of  the  judge,  would  tend  to  defeat  or  delay  the  solicitor  in 
obtaining  payment. 

3.  A  solicitor  may  not  receive  from  his  client,  during  the  existence 
of  a  suit,  anything  beyond  his  regular  charges  allowed  by  law.  If  a 
present  be  made  him  by  a  grateful  client  while  the  relation  of  solicitor 
and  client  subsists,  the  Court  will  presume  that  the  gift  was  the  result 
of  undue  influence  owing  to  the  fiduciary  relation  between  them ;  and 
this  presumption  continues  so  long  as  the  relation  of  solicitor  and  client 
continues  for  other  purposes  outside  the  gift.  This  presumption,  how- 
ever, is  not  irrebuttable ;  but  the  onus  is  on  the  solicitor  to  prove  clearly 
that  the  gift  was  uninfluenced  by  that  relation  (  Wright  v.  Carter,  [1903] 
1  Ch.  27).  Where  the  aunt  of  a  solicitor's  wife  assigned  leaseholds  to 
her  niece  as  a  present,  but  afterwards  demanded  them  back,  the  wife 
was  compelled  to  return  them,  because  her  husband  had  acted  profea- 


454  SOLICITOR 

sionally  for  the  aunt  shortly  before  the  date  of  the  assignment  {Liles  v. 
Terry,  [1895]  2  Q.  B.  679).  But  the  application  to  have  the  gift  declared 
invalid  must  be  made  within  a  reasonable  time  after  the  relation  of 
solicitor  and  client  has  ceased  to  exist. 

4.  A  bequest  to  a  solicitor  by  will  stands  upon  a  different  footing 
from  a  gift  inter  vivos  (Hinsdon  v.  Weatherill,  1854,  5  De  G.,  M.  &  G. 
301 ;  43  E.  E.  886 ;  23  L.  J.  Ch.  820).  Yet  even  here,  if  the  solicitor 
himself  drew  the  will  by  which  he  benefits,  the  07ius  lies  on  him  to  prove 
the  bond  fides  of  the  transaction.  He  must  by  affirmative  evidence 
remove  all  suspicion,  and  satisfy  the  Court  that  the  testator  knew  and 
approved  of  the  contents  of  the  will  {Fidton  v.  Andrew  &  Wilson,  1875, 
L.  E.  7  H.  L.  448 ;  Bro^tm  v.  Fisher,  1890,  63  L.  T.  465  ;  Tyrrell  v. 
Fainton,  [1894]  P.  151). 

5.  There  is  no  objection  to  a  solicitor  openly  selling  his  property  to  a 
former  client  after  the  relation  of  solicitor  and  client  is  at  an  end.  But 
if  he  openly  sells  to  a  present  client  while  still  acting  for  him,  the  sale 
will  be  set  aside,  unless  the  Solicitor  can  show  that  he  made  a  full  and 
fair  disclosure  of  every  fact  affecting  the  transaction  {per  Fry,  J.,  in 
Davies  v.  Z.  and  P.  Marine  Insurance  Co.,  1878,  8  Ch.  D.,  at  p.  474).  If, 
however,  the  solicitor  conceals  the  fact  that  he  is  the  vendor,  and  sells 
to  his  client  through  the  agency  of  some  trustee  or  nominee,  the 
transaction  is  wholly  invalid,  and  will  at  once  be  set  aside. 

6.  A  somewhat  "less  stringent"  rule  applies  to  cases  in  which  a 
solicitor  purchases  from  a  client,  because,  though  the  relationship  of 
solicitor  and  client  may  now  be  at  an  end,  still  the  solicitor  may  have 
acquired  valuable  information  about  his  client's  property  while  the 
relationship  existed.  If,  therefore,  the  solicitor  was  ever  employed  in 
connection  with  the  property  purchased,  or  on  any  business  which  in 
any  way  affected  that  property,  the  transaction  will  be  set  aside  if  the 
client  subsequently  calls  it  in  question,  unless  the  solicitor  can  satisfy 
the  Court  that  he  gave  his  client  all  reasonable  advice  against  himself 
which  he  would  have  given  against  a  third  person  {Gibson  v.  Jeyes,  1801, 
6  Ves.,  at  p.  278 ;  31  E.  E.  1044 ;  5  E.  E.  295).  The  solicitor  must 
prove  (1)  that  the  client  was  fully  informed ;  (2)  that  he  had  competent 
independent  advice ;  and  (3)  that  the  price  given  was  a  fair  one  (  Wright 
V.  Carter,  supra).  The  law  on  this  point  is  admirably  summed  up  by 
Stirling,  L.J.,  in  In  re  Haslam  &  Hier-Evans,  [1902]  1  Ch.,  at  pp.  769, 
770 : — "  All  transactions  between  solicitor  and  client,  which  result  in  the 
solicitor's  obtaining  a  benefit  for  himself,  are  subjected  by  Courts  of  law 
to  strict  scrutiny  when  called  in  question  by  the  client,  and  are  treated 
as  imposing  obligations  on  the  solicitor  of  greater  or  less  stringency.  In 
some  cases  the  obligation  goes  so  far  as  almost  to  bind  the  solicitor  to 
abstain  altogether  from  a  transaction  of  the  kind.  Thus  a  solicitor  may 
not  accept  from  his  client,  while  the  relation  of  solicitor  and  client 
exists,  remuneration  for  his  professional  services  beyond  that  to  which 
he  is  legally  entitled.  Of  the  application  of  this  rule  O'Brien  v.  Lewis, 
1863,  32  L.  J.  Ch.  569,  is  a  striking  example.  In  the  great  majority  of 
cases,  however,  the  law  does  not  exact  so  much.  A  solicitor  may,  for 
example,  purchase  from  his  client,  but  there  is  imposed  on  him  the 
burden  of  proving  that  his  client  was  fully  informed,  and  duly  and 
honestly  advised,  and  that  the  price  was  just.  See  the  judgment  of 
Turner,  L.J.,  in  Holman  v.  Loynes,  1854,  4  De  G.,  M.  &  G.  270,  284 ; 
43  E.  E.  510.  ...  'The  nature  of  the  proof,  therefore,  which  the  Court 
requires  must  depend  upon  the  circumstances  of  each  case,  according  as 


SOLICITOE  455 

they  may  have  placed  the  attorney  in  a  position  in  which  his  duties  and 
his  pecuniary  interests  were  conflicting,  or  may  have  given  him  a  know- 
ledge which  his  client  did  not  possess,  or  some  influence  or  ascendency 
or  other  advantage  over  his  client ;  or,  notwithstanding  the  existence  of 
the  relation  of  attorney  and  client,  may  have  left  the  parties  substantially 
at  arm's  length  and  on  an  equal  footing '  {per  Wigram,  V.-C,  in  Edwards 
v.  Meyrick,  1842,  2  Hare,  60,  69,  70  ;  67  E.  E.  25  ;  62  E.  E.  23).  It  thus 
appears  that,  in  the  class  of  cases  of  which  Edwards  v.  Meyrick  is  a  type, 
it  is  necessary  that  the  solicitor  should  establish  that  he  and  his  client 
were  '  substantially  at  arm's  length  and  on  an  equal  footing.'  "  And  see 
Allison  V.  Clayhills,  1907,  97  L.  T.  709.  If,  however,  the  solicitor  con- 
ceals the  fact  that  he  is  the  real  purchaser,  and  purchases  in  the  name 
of  a  trustee  or  agent,  the  transaction  will  in  every  case  be  set  aside 
{McPherson  v.  Watt,  1877, 3  App.  Cas.  254).  The  purchase  by  a  solicitor 
of  the  subject-matter  of  the  suit  from  the  client  for  whom  he  is  acting 
in  that  suit  is  on  every  ground  objectionable  {Simpson  and  Another  v. 
Lamh,  1857,  7  El.  &  Bl.  121 ;  26  L.  J.  Q.  B.  121 ;  Pittman  v.  Prudential 
Deposit  Bank,  Ltd.,  1896,  13  T.  L.  E.  110). 

7.  A  mortgage  given  by  a  client  to  his  solicitor  as  security  for  the 
repayment  of  an  actual  cash  advance  will,  as  a  rule,  stand  good,  unless 
the  terms  of  the  bargain  are  unfair,  or  unusual  clauses  are  inserted  in 
the  mortgage  deed ;  but  the  solicitor  ought  in  every  case  to  explain  to  the 
client  the  meaning  and  effect  of  the  clauses  of  the  deed  {Cockhurn  v. 
Edwards,  1881,  18  Ch.  D.,  at  p.  455).  As  to  a  mortgage  given  by  a 
client  to  his  solicitor  as  security  for  his  bill  of  costs,  see  post,  p.  476.  It 
is  professional  misconduct  for  a  solicitor  to  borrow  large  sums  of  money 
from  his  client  within  a  few  months  of  the  client's  attaining  his  majority 
{In  re  A  Solicitor  (No.  1),  [1894]  1  Q.  B.  254). 

VII.  Duties  of  a  Solicitor. 

A  solicitor  always  acts  in  a  twofold  capacity.  He  is  an  officer  of  the 
Court,  as  well  as  a  professional  man  retained  by  a  client  {per  James,  L, J., 
in  In  re  Haynes,  1880,  15  Ch.  D.,  at  p.  52).  Hence  his  duties  may  be 
grouped  under  two  heads — 

(i.)  His  duty  to  his  client. 

(ii.)  His  duty  to  the  Court. 

(i.)  The  Duty  of  a  Solicitor  to  his  Client. 

1.  He  is  bound  to  bring  reasonable  skill  and  learning  to  the  manage- 
ment of  his  client's  affairs.  He  will  not  be  expected  to  know  the  law  on 
doubtful  points  of  rare  occurrence,  or  such  matters  as  are  usually  sent  to 
counsel  for  their  opinion.  But  he  should  be  acquainted  with  the  general 
rules  of  law,  with  the  practice  of  conveyancing,  and  especially  with  the 
practice  and  procedure  of  the  various  Courts,  superior  and  inferior.  If 
a  solicitor,  with  or  without  express  directions  from  his  client,  takes  out  a 
writ  and  proceeds  thereon  in  a  Court  of  special  and  peculiar  jurisdiction, 
he  is  bound  to  acquaint  himself  with  the  machinery  by  which  the  practice 
of  that  Court  is  regulated,  and  to  see  that  it  is  adequate  to  the  carrying 
out  of  the  objects  of  the  suit  {per  Cockburn,  C.J.,  in  Cox  v.  Leech,  1857, 
1  C.  B.  N.  S.,  at  p.  630 ;  and  see  Williams  v.  Gihbs,  1836,  5  Ad.  &  E.  208 ; 
44  E.  E.  404). 

2.  A  solicitor  must  apply  due  diligence  and  attention  to  his  client's 


456  SOLICITOE 

affairs.  He  must  carefully  receive  and  note  his  client's  instructions,  and 
read  the  documents  which  his  client  lays  before  him.  He  must  not  com- 
mence an  action  till  his  client's  title  is  complete  {Long  v.  Orsi,  1856,  26 
L.  J.  C.  P.  127).  He  must  carefully  watch  the  progress  of  any  litigation, 
and  be  ready  to  take  the  proper  step  at  each  stage  {Hamngton  v.  Binns, 
1863,  3  F.  &  F.  942).  He  must  do  all  that  is  necessary  to  prepare  the 
case  for  trial ;  he  must  procure  the  necessary  evidence,  inform  the  client 
and  his  witnesses  of  the  day  fixed  for  the  hearing,  and  be  in  attendance  on 
that  day  himself,  or  by  some  proper  person  on  his  behalf  (see  Order  65, 
r.  5),  with  all  necessary  witnesses  and  papers. 

3.  He  must  give  his  client  the  best  advice  in  his  power.  He  must 
safeguard  his  interests  both  by  securing  for  him,  as  far  as  possible,  that 
to  which  he  is  entitled,  and  also  by  preventing  him  from  prejudicing  his 
position  by  giving  away  his  rights  or  entering  into  rash  or  foolish  engage- 
ments. He  must  prevent  his  acting  either  precipitately  or  oppressively. 
If  the  client  is  a  trustee  or  an  executor,  the  solicitor  must  not  allow  him 
to  commit  a  breach  of  trust,  or  enter  into  covenants  for  title,  or  otherwise 
render  himself  personally  liable. 

4.  The  solicitor  must  give  his  own  personal  attention  to  his  client's 
affairs.  He  must  not  leave  him  entirely  to  clerks.  Ministerial  work 
may  be  dispatched  by  clerks ;  but  the  solicitor  should  keep  the  conduct 
of  the  litigation,  and  the  decision  of  important  questions  of  expediency, 
in  his  own  hands.  The  client  is  entitled  to  his  solicitor's  personal  advice 
and  judgment  (Hopkinson  v.  Smith,  1822,  1  Bing.  13;  25  R.  R.  571). 

5.  A  solicitor  should  communicate  personally  with  his  client,  and 
keep  him  fully  informed  of  every  material  step  that  is  taken  on  his 
behalf,  and  also  by  his  opponent  or  other  persons  concerned.  In  par- 
ticular, if  the  opponent  offers  a  compromise,  the  solicitor  should  at  once 
communicate  the  fact  to  his  client  {Sill  v.  Thomas,  1839,  8  Car.  &  P. 
762 ;  and  see  Order  31,  r.  23,  post,  p.  464).  In  many  cases  a  solicitor 
will  not  be  allowed  to  recover  certain  extra  costs,  unless  he  consults 
his  client  before  incurring  them,  and  warns  him  that  they  cannot  be 
recovered  from  his  opponent  (see  In  re  Blyth  cfe  Fanshawe,  1882,  10 
Q.  B.  D.  207 ;  In  re  Broad,  1885,  15  Q.  B.  D.  420).  But  if  a  solicitor 
be  instructed  by  the  managing  partner  of  a  firm,  it  is  enough  for  him 
to  communicate  the  result  of  the  action  to  that  managing  partner ;  he 
need  not  write  to  each  of  the  other  partners  {Tomlinson  v.  Broadsmith, 
[1896]  1  Q.  B.  386). 

6.  He  is  also  bound  to  manage  the  business  intrusted  to  him  with 
fidelity  and  good  faith.  He  must  keep  his  client's  secrets  {Taylor  v. 
BlacUow,  1836,  3  Bing.  K  C.  235 ;  43  R.  E.  626),  and  not  disclose  any 
information  given  him  by  his  client  for  the  purposes  of  his  case,  even 
though  unnecessarily  {Cleave  v.  Jones,  1852,  21  L.  J.  Ex.  105).  Where 
it  appeared  that  the  same  solicitor  was  employed  in  an  action  on  both 
sides,  the  Court  set  aside  the  proceedings  and  ordered  the  solicitor  to 
pay  the  costs  {Berry  v.  Jenkins,  1826,  11  Mo.  308 ;  B.  v.  Alderson,  1839, 
11  Ad.  &  E.  3).  But  in  non-litigious  matters  the  same  solicitor  is  often 
employed  by  all  parties.  Thus  the  interests  of  lender  and  borrower  do 
not  necessarily  clash,  and  where  they  do  not,  the  same  solicitor  may 
properly  act  for  both  {per  Tindal,  C.J.,  in  Doe  d.  Peter  v.  Watkins,  1837, 
3  Bing.  K  C,  at  p.  424;  43  R.  R.  701);  and  the  General  Order  made 
under  Sol.  Remuneration  Act,  1881  (Sched.  I.,  r.  3),  provides  for  the 
mode  of  payment  in  such  cases.  But  where  a  solicitor  advances  money 
on  mortgage  to  his  own  client,  it  is  his  duty  to  insert  the  ordinary 


SOLICITOR  457 

restrictions  on  the  power  of  sale,  or  to  explain  the  omission  to  his  client 
(Cockburn  v.  Edwards,  1881,  18  Ch.  D.  449 ;  Allison  v.  Clayhills,  1907, 
97  L.  T.  709).  Again,  in  the  administration  of  estates  and  the  execution 
of  trusts,  the  same  solicitor  may  often  act  for  all  parties,  even  though 
their  interests  conflict,  and  if  proceedings  be  taken,  may  instruct  separate 
counsel  to  represent  their  different  interests.  But  where  solicitors  repre- 
sent conflicting  interests  in  litigious  proceedings  it  is  professional  mis- 
conduct for  them  to  share  profits  behind  the  backs  of  their  clients  {In  re 
Lydall,  [1901]  1  K.  B.  187). 

7.  He  must  not  suddenly  abandon  his  client  in  the  middle  of  an 
action  or  other  business.  After  he  has  once  taken  upon  himself  to  be 
solicitor  for  anyone  in  a  given  matter,  he  cannot  as  a  rule  withdraw  till 
he  has  brought  it  to  a  termination ;  he  must  carry  the  matter  through ; 
he  can  only  discharge  himself  after  reasonable  notice,  and  for  a  reason- 
able cause  {e.g.  where  his  client  will  not  supply  him  with  money).  See 
Underwood  v.  Lewis,  [1894]  2  Q.  B.  306;  and  Determination  of  Retainer 
by  Act  of  the  Solicitor,  ante,  p.  447. 

8.  He  must  keep  his  client's  papers  and  documents  in  proper  order, 
and,  subject  to  his  lien  for  costs,  deliver  them  up  in  proper  order  when 
required  to  do  so  by  their  legal  owner  {North  Western  Ely.  Co.  v.  Sharp, 
1854,  10  Ex.  Eep.  451;  24  L.  J.  Ex.  44;  Tendring  Hundred  Water- 
vjorks  Co.  v.  Jones,  [1903]  2  Ch.  615).  If  he  does  not,  he  will  be  liable 
to  an  action  of  detinue  {Reeve  v.  Palmer,  1858,  27  L.  J.  C.  P.  327 ;  1859, 
28  L.  J.  C.  P.  168;  Goodman  v.  Boycott,  1862,  31  L.  J.  Q.  B.  69). 

9.  He  must  keep  clear  and  accurate  accounts  of  all  moneys  received 
by  him  for  and  on  behalf  of  his  client.  He  must  keep  such  moneys  apart 
from  his  own.  He  is  liable  at  any  moment  to  be  called  on  to  render  an 
account.  If,  as  agent  for  the  vendor  of  real  estate,  he  has  received  a  deposit 
on  the  signing  of  a  contract  for  sale,  he  is  bound  to  pay  it  over  to  the 
vendor  on  demand  {Edgell  v.  Day,  1865,  L.  R.  1  C.  P.  80). 

10.  He  must  keep  clear  and  accurate  accounts  of  his  own  charges 
against  his  client,  and  of  the  work  for  which  each  item  is  charged.  He 
should  also  keep  for  reference  a  copy  of  every  letter  which  he  writes  on 
his  client's  behalf  {Boxsius  v.  Goblet  Fr^res,  [1894]  1  Q.  B.,  at  p.  845). 

(ii.)  The  Duty  of  a  Solicitor  to  the  Court. 

The  solicitor's  duty  to  the  Court  is  of  so  varied  a  character  that  it  is 
only  possible  here  to  give  a  few  instances. 

1.  A  solicitor  must  never  permit  any  unqualified  person  to  practise 
in  his  name  (Sol.  Act,  1843,  s.  32). 

2.  No  solicitor  may  commence  any  legal  proceeding  without  instruc- 
tions from  his  client.  Every  solicitor  whose  name  is  indorsed  on  any  writ 
of  summons  is  bound  to  state  on  demand  whether  such  writ  was  issued 
with  his  authority  or  not  (Order  7,  r.  1).  If  the  writ  was  issued  without 
his  authority  or  privity,  all  proceedings  will  at  once  be  stayed  {ibid.).  If, 
on  the  other  hand,  the  solicitor  issued  the  writ  without  authority  from 
the  person  named  thereon  as  plaintiff',  he  will  be  ordered  to  pay  all  costs 
which  that  person  has  incurred  as  between  solicitor  and  client,  and  also 
all  costs  incurred  by  the  defendant  {Fricker  v.  Van  Grutten,  [1896]  2  Ch. 
649;  Gold  Reefs,  Ltd.  v.  Daivson,  [1897]  1  Ch.  115;  Geilinger  v.  Gibbs, 
[1897]  1  Ch.  479). 

3.  A  solicitor  who  has  issued  a  writ  in  the  name  of  a  firm  must, 
on  demand,  declare  in  writing  the  names  and  places  of  residence  of 


458  SOLICITOR 

all  the  persons  constituting  that  firm  (Order  48a,  r.  2 ;  Abrahams  v. 
J)unlop  P.  T.  Co.,  [1905]  1  K.  B.  46). 

4.  A  solicitor  must  never  be  guilty  of  "  sharp  practice ; "  he  must 
never  "  snap  "  a  judgment ;  he  must  not  allow  his  client  to  "  swear 
by  the  card ; "  he  must  never  attempt  to  mislead  the  Court  himself, 
nor  permit  his  client  so  to  do  {Pierce  v.  Blake,  1696,  2  Salk.  515  ; 
In  re  Dangars  Trusts,  1889,  41  Ch.  D.  178 ;  In  re  Davies,  1898,  14 
T.  L.  E.  332). 

5.  Every  solicitor  who  has  accepted  service  of  a  writ  must  appear 
thereto  in  due  course  in  accordance  with  his  undertaking,  or  he  will 
be  liable  to  be  attached  (Order  12,  r.  18  ;  In  re  Kerly,  [1901]  1  Ch. 
467).  And,  generally,  every  solicitor  must  loyally  fulfil  every  under- 
taking which  he  has  given  in  his  character  as  an  officer  of  the  Court, 
and  promptly  pay  all  moneys  due  from  him  in  that  character,  or  he  will 
be  liable  to  be  committed  {Swyny  v.  Harland,  [1894]  1  Q.  B.  707 ;  In 
re  A  Solicitor,  [1895]  2  Ch.  66  ;  In  re  Coolgardie  Goldfields,  ltd.,  [1900] 

1  Ch.  475  ;  D.  v.  A.  &  Co.,  ibid.  484).     This  is  so,  even  where  the  under- 
taking is  given  to  a  person  not  his  client  {In  re  A  Solicitor,  [1907] 

2  K.  B.  539 ;  and  see  post,  p.  463). 

6.  Every  solicitor  must  always  act  in  the  interest  of  his  client,  and 
not  put  the  law  in  motion  for  private  ends  of  his  own  {Harbin  v. 
Masterman,  [1896]  1  Ch.  351). 

7.  The  solicitor  on  the  record  is  personally  liable  for  the  court-fees 
and  the  jury-fees  {langridge  v.  lynch,  1876,  34  L.  T.  695),  and  for 
the  fees  payable  to  an  official  referee  (Order  36,  r.  55d).  But  he  is 
not  liable  to  the  sheriff  for  his  fees  or  possession  money  {Boyle  v.  Busby 
&  Son,  1880,  6  Q.  B.  D.  171);  nor  is  he  liable  to  the  witnesses  for  their 
expenses  {Bobins  v.  Bridge,  1837,  3  Mee.  &  W.  114),  unless  he  has  done 
some  act  to  bring  upon  himself  such  additional  liability. 

VIII.  Breach  of  Duty. 

If  a  solicitor  be  guilty  of  a  breach  of  his  duty  to  his  client,  the  client 
has  different  remedies  according  to  the  circumstances : — 

(i.)  He  may  sue  the  solicitor  for  damages  for  negligence. 

(ii.)  He  may  refuse  to  pay  his  bill  of  costs. 

(iii.)  He  may  apply  to  the  Court  for  a  summary  order  to  compel  the 
solicitor  to  do  his  duty. 

(iv.)  He  may  apply  to  strike  the  name  of  the  solicitor  off  the  roll, 
or  to  make  him  answer  the  matters  contained  in  an  affidavit. 

(v.)  He  may,  in  very  grave  cases,  take  criminal  proceedings  against 
the  solicitor.  As  to  this  last  head,  it  is  sufficient  to  state  that  a 
solicitor  may  be  indicted  for  embezzling  money  or  securities  intrusted 
to  him  for  safe  custody,  or  with  a  written  direction  as  to  its  application, 
under  24  &  25  Vict.  c.  96,  s.  75  or  76.  See  also  sees.  3  and  77  of  the 
same  Act,  and  1  Edw.  vii.  c.  10 ;  B.  v.  Cooper,  1874,  L.  R.  2  C.  C.  123 ; 
B.  v.  Fullagar,  1879,  14  Cox  C.  C.  370 ;  B.  v.  Newman,  1882,  8  Q.  B.  D. 
706  ;  and  In  re  Bellencontre,  [1891]  2  Q.  B.  122. 

(i.)  Action  against  a  Solicitor  for  Negligence. 

A  solicitor  is  liable  to  his  client  for  damages  arising  from  negligence 
in  the  course  of  his  employment.  He  is  liable  for  his  own  negligence 
and  for  that  of  his  clerk,  of  his  partner,  and  of  his  London  agent 


SOLICITOR  459 

{Simmons  v.  Bose,  1862,  31  Beav.  1),  provided  they  were  acting  within 
the  limits  of  their  authority  (see  post,  p.  468).  Only  the  client  or  his 
representative  can  sue ;  the  solicitor  is  not  liable  to  a  third  person  who 
has  also  sustained  damage,  for  he  owes  him  no  duty  {Bohertson  v.  Fleming, 
1861,  4  Macq.  H.  L.  Gas.  167  ;  Fish  v.  Kelly,  1864,  17  C.  B.  K  S. 
194 ;  Hannaford  v.  Syms,  1898,  79  L.  T.  30).  But  a  solicitor  trustee  to 
whom  the  management  of  the  trust  has  been  left  is  liable  to  indemnify 
his  co-trustee  against  the  consequences  of  any  negligence,  even  though 
no  actual  loss  has  been  thereby  occasioned  to  the  trust  estate  {In  re 
Linsley,  [1904]  2  Ch.  785). 

It  does  not  matter  whether  the  solicitor  was  to  be  paid  for  his 
services  or  had  agreed  to  act  gratuitously ;  it  does  not  matter  whether 
he  was  or  was  not  certificated  at  the  time  {Brown  v.  Tolley,  1874, 
31  L.  T.  485).  But  the  plaintiff  must  state  clearly  and  specifically  in 
his  statement  of  claim,  or  in  particulars,  what  the  negligence  is  which 
he  charges  against  the  defendant  {Bettyes  v.  Maynard,  1883,  31  W.  E. 
461 ;  49  L.  T.  389).  The  plaintiff  must  prove  the  alleged  negligence  ; 
he  must  show  that  he  has  suffered  damage  in  consequence  of  that  negli- 
gence. Nominal  damage  is  apparently  sufficient  {Godefroy  v.  Jay,  1831, 
7  Bing.  413 ;  33  E.  E.  528 ;  Fray  v.  Voidcs,  1859,  1  El.  &  El.  839).  It 
was  held  in  Cochhurn  v.  Edwards,  1881, 18  Ch.  D.  449,  that  the  difference 
between  party  and  party  costs  and  costs  as  between  solicitor  and  client 
could  not  be  given  to  the  plaintiff  by  way  of  damages ;  this  practice  was 
followed  in  Harrison  v.  McSheehan,  1885,  W.N.  207;  but  this  has  since 
been  doubted  {Andrews  v.  Barnes,  1888,  39  Ch.  D.  133).  The  cause  of 
action  does  not  abate  on  the  death  or  bankruptcy  of  either  party,  but 
survives  to  or  against  the  personal  representative  or  trustee  in  bank- 
ruptcy {Blyth  v.  Fladrjate,  [1891]  1  Ch.  337).  The  Statute  of  Limitations 
will  often  afford  a  defence  to  such  an  action,  for  it  runs,  as  a  rule, 
from  the  time  when  the  solicitor  was  guilty  of  the  alleged  negligence, 
and  not  from  the  time  when  the  client  first  discovered  the  negligence, 
nor  from  the  time  when  consequential  damage  ensued  {Howell  v. 
Young,  1826,  5  Barn.  &  Cress.  259 ;  29  E.  E.  237  ;  Short  v.  McCarthy, 
1820,  2  Barn.  &  Adol.  626 ;  Smith  v.  Fox,  1848,  6  Hare,  386  ;  67  E.  E. 
1216;  77  E.  E.  152.  But  see  Dooly  v.  Watson,  1888,  39  Ch.  D.  178; 
51  &  52  Vict.  c.  59,  s.  8  (1);  and  Somerset  v.  Earl  Poulett,  [1894] 
1  Ch.  231). 

What  is  Actionable  Negligence. — A  solicitor  is  bound  to  use  reason- 
able skill  and  diligence  in  the  management  of  the  business  intrusted 
to  him  by  his  client.  Yet,  as  Tindal,  C.J.,  points  out  in  Godefroy  v. 
Dalton,  1830,  6  Bing.,  at  pp.  467,  468,  it  is  very  difficult  to  define  the 
exact  limits  of  this  skill  and  diligence,  or  to  trace  precisely  the  dividing 
line  between  pardonable  error  and  actionable  negligence  (see  Piirves 
V.  Landell,  1845,  12  CI.  &  Pin.  91;  8  E.  E.  1332;  69  E.  E.  46;  and 
Caldwell  v.  Hunter,  1848,  10  Q.  B.  83).  Still,  many  cases  lie  clearly 
beyond  that  line,  and  these  may  be  grouped  under  three  heads  : — 

{a)  Bad  advice. 

{h)  Negligence  in  the  conduct  of  an  action. 

(c)  Omissions,  etc. 

{a)  Bad  Advice. — It  is  the  duty  of  a  solicitor  to  give  his  client 
proper  advice  both  in  litigious  and  non-litigious  matters.  He  should 
not  allow  his  client  to  embark  on  an  improper  or  hazardous  action  or 
defence  without  warning  him  of  the  consequences  {Jacks  v.  Bell,  1828, 
3  Car.  &  P.  316 ;  Allison  v.  Bayner,  1827,  7  Barn.  &  Cress.  441.     He 


460  SOLICITOR 

must  take  care  that  his  client  does  not  enter  into  any  covenant  or  make 
any  promise  which  would  expose  him  to  a  greater  degree  of  responsi- 
bility than  is  ordinarily  attached  to  the  business  in  hand,  without 
clearly  understanding  the  extent  of  the  liability  which  he  is  undertak- 
ing, and  its  possible  consequences  (Stannard  v.  Ullithorne,  1834,  10 
Bing.  491 ;  38  R.  K  518). 

Thus  it  is  the  duty  of  a  solicitor  to  explain  to  his  client  the  effect 
of  a  mortgage  or  a  bill  of  sale  which  he  is  asked  to  sign  (Bettyes 
V.  Maynard,  1882,  46  L.  T.  766  ;  49  L.  T.  389 ;  In  re  Haynes,  1880, 
15  Ch.  D.  42,  52 ;  Cockhurn  v.  Edwards,  1881,  18  Ch.  D.  449  ;  Pooley's 
Trustee  v.  Wlietham,  1886,  33  Ch.  D.  111). 

He  must  therefore  have  an  efficient  knowledge  of  the  ordinary  rules 
of  law,  equity,  and  conveyancing,  and  especially  of  the  procedure  of  our 
Courts.  But  he  is  not  chargeable  with  negligence  if  he  make  a  mistake 
on  a  point  of  law  or  practice  as  to  which  there  is  a  reasonable  doubt 
{Kemp  V.  Burt,  1833,  4  Barn.  &  Adol.  424 ;  38  R.  R.  278 ;  ElUngton  v. 
Holland,  1842,  9  Mee.  &  W.  65^9).  A  solicitor  in  such  cases  had  better 
consult  counsel,  and  obtain  his  opinion,  and  act  on  it  accordingly ; 
indeed,  his  neglect  to  do  so  might  render  him  liable,  while,  on  the  other 
hand,  his  doing  so  will,  in  general,  protect  him.  The  opinion,  however, 
will  not  have  this  effect  where  it  is  on  a  point  which  lies  especially 
within  the  province  of  a  solicitor  {Gates  v.  Indermaur,  1858,  1  F.  &  F. 
259 ;  Fray  v.  Voules,  1859,  1  El.  &  El.  839 ;  28  L.  J.  Q.  B.  232 ;  Lee  v. 
Walker,  1872,  L.  R.  7  C.  R  121).  The  solicitor  must  lay  before  counsel 
a  correct  statement  of  the  facts  ;  otherwise  the  opinion  which  he  obtains 
will  afford  him  no  protection  {Ireson  v.  Pearman,  1825,  3  Barn.  &  Cress. 
799 ;  27  R.  R.  490 ;  Andrews  v.  Rawley,  1857,  26  L.  J.  Ex.  323).  He 
will  not  be  liable  for  mistakes  made  by  counsel,  unless  the  selection  of 
such  a  counsel  was  in  itself  a  negligent  act. 

(6)  Negligence  in  the  Conduct  of  an  Action. — The  solicitor  must  be 
careful  to  select  the  proper  Court  in  which  to  sue.  He  will  be  guilty 
of  negligence  if  he  sues  in  a  Court  of  limited  jurisdiction  for  a  debt 
contracted  outside  its  jurisdiction  (  Williams  v,  Gibbs,  1836,  5  Ad.  &  E. 
208;  44  R.  R.  404;  and  see  Cox  v.  Leech,  1857,  1  C.  B.  N.  S.  617;  26 
L.  J.  C.  P.  125).  He  must  be  clear  what  his  client's  cause  of  action  is, 
and  sue  in  proper  form.  Thus  a  solicitor  was  held  liable  in  damages 
who  was  instructed  by  a  master  to  proceed  against  his  apprentices  for 
misconduct,  and  took  proceedings  under  a  statute  which  related  only 
to  servants  and  not  to  apprentices  {Hart  v.  Frame,  1839,  6  CI.  &  Fin. 
193;  7E.  R.  670;  49  R.  R.  88). 

So  if  a  solicitor  be  instructed  to  defend  an  action,  and  suffer  judg- 
ment to  go  by  default,  he  is  guilty  of  gross  negligence,  and  it  is  no 
answer  for  him  to  show  that  his  client  had  no  defence,  except,  indeed, 
to  mitigate  the  damages  {Godefroy  v.  Jay,  1831,  7  Bing.  413 ;  33  R.  R. 
528). 

Then  a  solicitor  must  make  himself  master  of  his  client's  case ;  he 
must  not  merely  note  what  the  client  tells  him,  he  must  himself  make 
proper  inquiries  {Thwaites  v.  Mackerson,  1828,  3  Car.  &  P.  341 ;  Gill  v. 
Lougher,  1830,  1  Cromp.  &  J.  170;  35  R.  R.  697).  It  is  the  duty  of 
the  solicitor  to  tell  his  client  what  evidence  will  be  needed,  to  obtain 
from  him  all  relevant  documents  and  information  in  his  possession,  and 
to  procure  from  other  sources  all  evidence  reasonably  necessary  to 
support  his  case.  He  must  acquaint  himself  with  the  facts,  subpoena 
the  necessary  witnesses,  and  take  a  careful  proof  of  their  evidence 


SOLICITOR  461 

{Godefroy  v.  Dalton,  1830,  6  Bing.  460,  468 ;  31  R  E.  467).  He  will 
also  be  guilty  of  negligence  if  he  does  not  properly  instruct  counsel ; 
if  he  does  not  deliver  briefs  in  due  time;  if  he  does  not  watch  the  list, 
and  inform  his  client  and  the  witnesses  when  the  case  is  in  the  list  for 
the  day.  He  must  be  present  in  Court  when  the  case  is  called  on ;  and 
it  is  no  excuse  for  his  absence  that  it  was  called  on  unexpectedly  or 
out  of  its  turn,  or  sent  into  another  Court  (Hawkins  v.  Harwood,  1849, 
4  Ex.  Rep.  503).  But  he  will  not  be  liable  for  the  absence,  neglect, 
or  want  of  attention  of  the  counsel  retained  by  him  in  an  action  {Lowry 
V.  Guilford,  1832,  5  Car.  &  P.  234;  38  R.  R.  818). 

(c)  Omissions,  etc. — A  solicitor  now  acts  for  his  clients  in  so  many 
and  in  such  various  matters  that  it  is  impossible  to  lay  down  any 
general  rule  defining  his  liability  for  negligence  in  all  cases.  It  must 
suffice  to  say  here,  first,  that  a  solicitor  is  liable  if  he  disregards  and 
neglects  to  carry  out  his  client's  lawful  instructions  in  any  material 
particular,  and  the  client  suffers  in  consequence  any  pecuniary  loss. 
But  he  is  not  responsible  for  such  disobedience  if  his  client  instructed 
him  to  do  some  dishonourable  or  reprehensible  act  {Johnson  w.  Alston,  1808, 
1  Camp.  176).  But,  in  the  second  place,  a  solicitor  must  do  more  than 
merely  obey  instructions.  His  client  may  not  understand  his  position, 
or,  still  more  probably,  may  not  know  what  steps  are  necessary  to 
safeguard  his  interests.  It  is  the  duty  of  the  solicitor  to  see  that  his 
client  is  duly  protected,  and  to  insist  that  all  proper  precautions  be 
taken. 

Thus,  if  his  client  has  consented  to  sue  or  to  defend  an  action  on 
behalf  of  another,  the  solicitor  should  of  his  own  motion  advise  his 
client  to  insist  on  having  an  indemnity,  and,  in  the  case  of  a  defendant, 
an  indemnity  that  will  cover  damages  and  costs  {Graham  v.  Lawrence, 
1858,  1  F.  &  F.  285).  He  must  not  wait  for  the  client  to  suggest  that 
an  indemnity  would  be  advisable.  Moreover,  it  is  his  duty  to  see  that 
his  client  does  not  rashly  enter  into  inconsiderate  engagements.  He 
must  carefully  investigate  any  suspicious  transaction  which  he  is 
instructed  to  carry  into  effect,  and  satisfy  himself  before  giving  it  his 
approval  that  it  is  for  his  client's  benefit  to  confirm  the  arrangement 
{Montmorency  v.  Devereux,  1840,  7  CI.  &  Fin.  188 ;  7  E.  R.  1039  ;  Cooper  v. 
Stephenson,  1852,  21  L.  J.  Q.  B.  292). 

If  a  solicitor  be  instructed  merely  to  draw  up  a  mortgage  or  other 
security  he  is  not  bound  to  inquire  into  the  value  of  the  property 
mortgaged.  But  if  he  is  employed  to  find  an  investment  he  must  use 
due  diligence  in  ascertaining  the  value  of  the  security  on  which  he 
advises  his  client  to  invest  {Hayne  v.  Rhodes,  1846,  8  Q.  B.  342 ;  15  L.  J. 
Q.  B.  137  ;  Brumhridge  v.  Massey,  1858,  28  L.  J.  Ex.  58 ;  Doohy  v. 
Watson,  1888,  39  Ch.  D.  178,  yost,  p.  469).  If  he  advises  his  client  to 
invest  his  money  on  a  particular  security,  it  is  his  duty  to  see  that  the 
security  is  "  adequate  in  point  of  value,  and  proper  in  point  of  form  " 
{per  Stirling,  J.,  in  Stokes  v.  Prance,  [1898]  1  Ch.,  at  p.  223). 

(ii.)  Refusal  to  Pay  Costs. 

The  client  may  properly  refuse  to  pay  for  work  negligently  or 
unskilfully  done.  Hence  negligence  is,  as  we  have  seen  (Bill  of  Costs, 
Action  on.  Vol.  II.  p.  193),  a  defence  to  an  action  on  a  solicitor's  bill,  or 
to  certain  items  of  it.  A  solicitor  cannot  recover  costs  for  any  work  done 
by  him,  or  for  money  paid  by  him  {Lewis  v.  Samuel,  1846,  8  Q.  B.  685 ; 


462  SOLICITOK 

70  E.  R.  582),  which  has  proved  wholly  useless  to  the  client  through 
the  solicitor's  gross  negligence  or  unskilfulness  {Hill  v.  Featherston- 
haugh,  1831,  7  Bing.  569  ;  33  R.  R.  576 ;  mmtley  v.  Bulwer,  1839, 
6  Bing.  K  C.  Ill),  or  which  is  unnecessary  for  accomplishing  the 
object  for  which  he  was  employed  {In  re  Barrow,  1853,  24  L.  J.  Ch. 
126;  and  see  Order  65,  r.  11,  j^ost,  p.  464).  If  a  solicitor  conducting 
an  action  commit  an  act  of  negligence  which  renders  useless  all  the 
work  which  he  has  done,  he  cannot  recover  any  portion  of  his  bill  of 
costs  {Bracey  v.  Carter,  1840,  12  Ad.  &  E.  373 ;  54  R.  R.  575 ;  Stokes  v. 
Trumper,  1855,  2  Kay  &  J.  232;  69  E.  R.  766).  Whether  or  not  the 
work  is  wholly  useless,  and  whether  or  not  it  was  rendered  useless  by 
the  plaintiff's  negligence,  are  questions  of  fact  for  the  jury  {Hill  v. 
Featherstonhaugh,  supra ;  Box  v.  Ward,  1816,  1  Stark.  409 ;  Chapman 
v.  Van  Toll,  1857,  8  El.  &  Bl.  396 ;  27  L.  J.  Q.  B.  1).  And  the  jury  may 
divide  the  bill  and  disallow  particular  items  as  altogether  useless  {Shaw 
v.  Arden,  1832,  9  Bing.  287,  291 ;  35  R.  R.  526).  But  they  cannot 
discard  any  item  that  is  charged  for  work  that  has  been  partly  useful 
{Fletcher  v.  Winter,  1862,  3  E.  &  F.  138).  Thus  where  a  solicitor 
brought  an  action  in  a  wrong  Court,  and  was  therefore  debarred  from 
recovering  any  of  the  costs  incurred  in  that  Court,  he  was  yet  allowed 
to  recover  the  costs  of  his  letters  before  action  {Cox  v.  Leech,  1857, 
1  C.  B.  K  S.  617 ;  26  L.  J.  C.  P.  125).  Where  the  plaintiff's  negligence 
or  want  of  skill  has  caused  the  defendant  an  injury,  and  not  merely 
increased  the  amount  of  the  bill  of  costs  sued  on,  the  defendant  must 
either  counterclaim  or  bring  a  separate  action  for  damages  {Templer  v. 
M'Lachlan,  1806,  2  Bos.  &  P.  N.  R.  136;  and  see  Davis  v.  Hedges, 
1871,  L.  R.  6  Q.  B.  687). 

(iii.)  Summary  Jurisdiction. 

The  Court  has  a  general  jurisdiction  over  its  officers  to  compel  them 
to  do  their  duty.  It  will  therefore,  in  a  clear  case  of  breach  of  duty, 
order  a  solicitor  to  pay  over  money  in  his  hands,  to  deliver  up  deeds,  or 
to  carry  out  any  professional  undertaking.  Such  an  order  is  made  on 
a  summary  motion,  or  application  at  chambers,  made  by  the  client. 

But  the  Court  will  not  compel  a  solicitor  to  hand  over  moneys 
received  for  his  client,  or  to  deliver  up  deeds  and  papers  on  which  he  has 
a  lien,  except  on  payment  of  all  moneys  due  to  him.  And  this  summary 
jurisdiction  will  only  be  exercised  in  cases  in  which  the  relation  between 
the  parties  is  strictly  that  of  solicitor  and  client.  The  Court  will  not 
interfere  in  this  way  where  the  solicitor  received  the  money,  or  holds  the 
papers  as  trustee  or  general  agent  of  the  client,  or  as  his  debtor  or 
creditor.  But  it  will  in  a  proper  case  enforce  any  undertaking  given 
by  a  solicitor  in  his  professional  character,  although  no  action  could  be 
brought  on  it  by  reason  of  the  Statute  of  Frauds  or  the  Statute  of  Limi- 
tations, the  aim  of  the  Court  being  to  secure  that  its  officers  act  honestly. 
So  the  Court  will  exercise  its  disciplinary  powers  over  its  officer,  although 
there  is  no  privity  of  contract  between  the  applicant  and  the  solicitor 
{Ex  parte  Edwarcls,  1881,  8  Q.  B.  D.  262;  In  re  Pomeroy  &  Tanner, 
[1897]  1  Ch.  284 ;  In  re  Carroll,  [1902]  2  Ch.  175 ;  In  re  A  Solicitor, 
[1907]  2  K.  B.  539);  and  although  the  applicant  may  have  already 
brought  an  action  against  the  solicitor  and  recovered  judgment  against 
him  {In  re  Grey,  [1892]  2  Q.  B.  440 ;  and  see  Godfrey  v.  George,  [1896] 
1  Q.  B.  48) ;  and  although  the  client  has  since  the  issue  of  the  writ  of 


SOLICITOE  463 

attachment  accepted  a  sum  of  money  in  part  payment  {In  re  Fereday, 
[1895]  2  Ch.  437);  and  although  the  solicitor  may  have  been  since 
struck  off  the  roll ;  it  is  sufficient  that  he  was  an  officer  of  the  Court  at 
the  time  of  the  alleged  misconduct,  or  at  the  date  of  the  order  which  he 
has  disobeyed  {In  re  Strong,  1886,  32  Ch.  D.  342).  The  provisions  of 
the  various  Solicitors  Acts  for  enforcing  the  delivery  and  taxation  of  a 
bill  of  costs  have  in  no  way  impaired  the  inherent  jurisdiction  of  the 
Court  over  its  officers  {Storer  &  Co.  v.  Johnson  &  Weatherall,  1890, 
15  App.  Cas.  203).  But  where  an  action  for  damages  for  negligence,  or 
an  ordinary  summons  under  the  Solicitors  Acts  for  a  bill  of  costs  and 
a  cash  account,  would  meet  the  case,  the  Court  will  not  interfere 
summarily. 

It  may  be  well  to  add  a  few  (out  of  many  possible)  instances  in 
which  the  Court  exercises  its  summary  jurisdiction  over  solicitors. 

1.  Any  solicitor  who  fails  loyally  to  fulfil  any  undertaking  given  by 
him  as  an  officer  of  the  Court  is  liable  to  attachment,  e.g.  if  he  fail  to 
appear  to  a  writ  in  accordance  with  an  undertaking  to  that  effect 
(Order  12,  r.  18 ;  In  re  Kerly,  [1901]  1  Ch.  467),  or  to  refund  costs  paid 
to  him  on  appeal  on  his  undertaking  to  repay  them  should  the  appeal 
be  successful  {Swynyv.  Harland,  [1894]  1  Q.  B.  707). 

2.  Every  solicitor  must  promptly  pay  all  moneys  due  from  him  in 
his  character  of  an  officer  of  the  Court  (as  distinct  from  that  of  an 
ordinary  litigant).  If  he  fail  to  comply  with  an  order  for  such  a  pay- 
ment, he  can  be  attached  for  his  disobedience,  in  spite  of  sec.  4  of  the 
Debtors  Act,  1869  {In  re  A  Solicitor,  [1895]  2  Ch.  66).  For  disobedience 
to  an  order  of  the  Court  made  against  a  solicitor  as  an  officer  of  the 
Court  is  a  contempt  of  a  criminal  nature  {In  re  Freston,  1883, 11  Q.  B.  D. 
545 ;  In  re  Dudley,  1883,  12  Q.  B.  D.  44). 

3.  If  a  solicitor  appeals  from  a  proper  order  not  in  the  interests  of 
his  client  but  for  purposes  of  his  own,  and  the  appeal  fails,  the  solicitor 
will  be  ordered  to  indemnify  his  client  against  the  costs  of  the  appeal 
{Harbin  v.  Masterman,  [1896]  1  Ch.  351 ;  and  see  In  re  Jones,  1870,  L.  R. 
6  Ch.  497). 

4.  Where  a  solicitor  misleads  the  Court  by  not  bringing  before  it  all 
necessary  facts,  he  may  be  ordered  to  make  good  any  deficiency  caused 
by  the  suppression  of  such  facts,  and  also  to  pay  costs  {In  re  Dangar's 
Trusts,  1889,  41  Ch.  D.  178). 

5.  Where  negligence  or  other  breach  of  duty  is  committed  by  a 
solicitor  in  a  matter  of  which  the  Court  has  seisin,  the  Court,  though 
it  cannot  then  and  there  mulct  him  in  damages  for  his  misconduct,  can 
summarily  order  the  solicitor,  as  its  officer,  to  make  good  the  loss  actually 
occasioned  thereby  {Marsh  v.  Joseph,  [1897]  1  Ch.  213). 

6.  If  a  solicitor  files  an  affidavit  containing  matter  which  is  at  once 
scandalous,  irrelevant,  and  false,  the  scandalous  matter  will  be  struck 
out,  and  the  solicitor  will  be  ordered  to  pay  all  the  costs  of  the  applica- 
tion to  be  taxed  as  between  solicitor  and  client  {Ex  parte  Simpson,  1809, 
15  Ves.  476;  10  R.  R.  104).  Where  a  sohcitor  inserted  scandalous 
matter  in  an  answer  to  a  bill,  and  put  counsel's  name  to  it  without  any 
authority  from  counsel,  the  Court  committed  the  solicitor  and  ordered 
him  to  pay  the  costs,  which  the  Master  taxed  at  £150  {Bishop  v.  Willis, 
1749,  5  Beav.  83w.;  49  E.  R.  508).  But  "nothing  can  be  scandalous 
which  is  relevant "  {per  Cotton,  L.J.,  in  Fisher  v.  Owen,  1878,  8  Ch.  D.,  at 
p.  653). 

7.  If  an  order  made  against  any  party  to  answer  interrogatories,  or 


464  SOLICITOE 

to  make  discovery  or  grant  inspection  of  documents,  be  served  upon  his 
solicitor,  and  he  neglects  without  reasonable  excuse  to  give  notice 
thereof  to  his  client,  he  will  be  liable  to  attachment  (Order  31,  r.  23). 

8.  Whenever  the  trial  of  any  cause  or  matter,  or  the  hearing  of  any 
application  {Barnard  v.  Scoles,  1889,  37  W.  E.  668),  cannot  conveniently 
proceed,  because  the  solicitor  for  either  party  has  neglected  to  attend 
personally,  or  by  some  proper  person  on  his  behalf,  or  has  omitted  to 
deliver  any  paper  necessary  for  the  use  of  the  Court  or  judge  and  which 
according  to  the  practice  ought  to  have  been  delivered,  such  solicitor 
shall  personally  pay  to  all  or  any  of  the  parties  such  costs  as  the  Court 
or  judge  may  think  fit  to  award  (Order  65,  r.  5). 

9.  The  Court  mav  disallow  as  between  solicitor  and  client  (even  after 
taxation.  Brown  v.  Burdett,  1887,  37  Ch.  D.  207 ;  1888,  40  Ch.  D.  244 ;  Li 
re  Scowhy,  [1897]  1  Ch.  741)  any  costs  that  have  been  incurred  improperly, 
or  without  any  reasonable  cause,  or  any  costs  which,  though  properly 
incurred  in  the  first  instance,,  have  nevertheless  proved  fruitless  to  the 
client  through  undue  delay  or  any  misconduct  or  default  of  the  solicitor ; 
and  may  also  order  the  solicitor  to  repay  to  his  client  any  costs  which 
the  client  may  in  consequence  have  been  ordered  to  pay  to  his  opponent 
(Order  65,  r.  11 ;  and  see  In  re  Dartnall,  [1895]  1  Ch.  474). 

(iv.)  Striking  a  Solicitor  off  the  Boll. 

In  addition  to  the  general  summary  jurisdiction  of  the  Court  just 
noticed,  the  Court  has  the  special  power  of  striking  the  name  of  a 
solicitor  off  the  roll  of  solicitors,  or  of  suspending  him  from  practice. 
This  power  will,  as  a  rule,  only  be  exercised  in  grave  cases,  where  the 
solicitor's  misconduct  is  either  criminal  or  so  dishonest  or  unprofessional 
as  to  render  him  unfit  to  continue  to  be  an  officer  of  the  Court  (In  re 
Blake,  1860,  3  El.  &  El.  34 ;  30  L.  J.  Q.  B.  32 ;  In  re  Weare,  [1893]  2  Q.  B. 
439).  Thus,  a  solicitor  will  be  struck  off  the  roll  if  he  has  been  con- 
victed, or  ought  to  be  convicted,  of  a  crime  (In  re  Elton,  1897, 13  T.  L.  K. 
392 ;  In  re  Cooper,  1898,  67  L.  J.  Q.  B.  276),  or  of  an  offence  against 
sec.  32  of  the  Sol.  Act,  1843  (In  re  Kelly,  [1895]  1  Q.  B.  180).  or  if  he 
has  been  guilty  of  gross  misconduct  (whether  professional  or  not),  such 
as  putting  before  the  Court  an  affidavit  which  he  knows  to  be  false, 
or  has  fraudulently  appropriated  moneys  due  to  his  client  or  of  which 
he  is  trustee.  In  1905  a  solicitor  who  had  become  a  bookmaker  was 
struck  off  the  rolls  (In  re  A  Solicitor,  93  L.  T.  838).  In  many  cases  the 
first  step  towards  striking  a  solicitor  off  the  roll  is  to  call  on  him  to  answer 
the  allegations  contained  in  a  certain  affidavit.  If  he  refuses  to  answer 
the  affidavit  within  a  reasonable  time  after  the  order  to  do  so  is  made 
and  served  on  him,  he  may  be  attached,  and  he  may  also  be  struck  off 
the  roll  for  contempt  (In  re  Worman,  186*2,  32  L.  J.  Ex.  83),  or  forbidden 
to  apply  to  the  registrar  to  renew  his  certificate  without  the  leave  of 
the  Court  (In  re  Whitehead,  1885,  28  Ch.  D.  614).  Where  an  English 
solicitor  had  practised  in  a  colony,  the  mere  fact  that  he  has  been  struck 
off  the  roll  there  for  professional  misconduct  is  not  sufficient  ground  for 
striking  him  off  the  roll  here ;  the  Court  here  will  require  evidence  of 
the  facts  constituting  the  alleged  misconduct  (In  re  A  Solicitor,  [1898] 
1  Q.  B.  331). 

Procedure. — An  important  alteration  in  procedure  was  made  by  sees. 
12-15  of  the  Sol.  Act,  1888,  51  &  52  Vict.  c.  65.  It  is  true  that  the 
Master  of  the  KoUs,  or  any  judge  of  the  High  Court  of  Justice,  may, 


SOLICITOR  465 

notwithstanding  anything  in  this  Act,  exercise  any  jurisdiction  over 
solicitors  which  he  might  have  exercised  if  the  Act  had  not  been  passed 
(s,  19).  Still,  in  the  absence  of  very  special  circumstances,  the  pro- 
cedure created  by  this  Act  should  be  adopted.  Sec.  13  enacts  that  any 
application  to  strike  the  name  of  a  solicitor  off  the  roll  of  solicitors 
(whether  at  the  instance  of  the  solicitor  himself  or  any  other  person), 
or  to  require  a  solicitor  to  answer  the  allegations  contained  in  an 
affidavit,  should  be  made  to  a  committee  of  the  Law  Society,  and  be 
heard  by  that  committee,  in  accordance  with  rules  made  under  the 
authority  of  this  Act.  These  rules  were  revised  in  May  1898,  and  are 
set  out  in  their  present  form  in  the  Law  Times  Journal,  vol.  cv.,  on  p.  62. 
The  committee  consists  of  not  less  than  three  nor  more  than  seven 
members  of  the  council  of  the  Law  Society,  selected  for  the  purpose  by 
the  Master  of  the  Rolls.  It  may  sit  in  two  divisions,  each  consisting  of 
not  less  than  three  members ;  no  application  can  be  heard  before  less 
than  three  members  of  the  committee  (s.  12).  The  committee  is  a  Court ; 
it  can  administer  an  oath  (s.  14) ;  its  proceedings  are  judicial,  and  are 
therefore  absolutely  privileged  {Lilley  v.  Roney,  1892,  61  L.  J.  Q.  B.  727; 
8  T.  L.  R.  642).  It  fixes  the  times  and  places  of  its  sittings,  and  may 
adjourn  any  case  from  time  to  time. 

An  application  to  the  committee  to  strike  a  solicitor  off  the  roll,  or 
to  require  him  to  answer  an  affidavit,  must  be  in  writing  signed  by  the 
applicant,  whose  address  and  profession  or  occupation  must  be  stated. 
He  must  also  make  or  join  in  an  affidavit,  stating  concisely,  and  with 
all  material  dates,  the  matters  of  fact  on  which  he  relies  in  support  of 
his  application.  He  need  not  set  out  his  evidence ;  but  he  may  attach 
a  copy  of  any  material  correspondence  as  an  exhibit  to  his  affidavit. 

The  applicant  is  not  necessarily  the  client  of  the  solicitor ;  any  person 
aggrieved,  or  anyone  having  official  cognisance  of  the  matter  (such  as, 
•  for  instance,  an  official  receiver,  or  even,  it  seems,  the  Law  Society  itself), 
may  apply  to  the  committee.  When  an  application  against  a  solicitor 
has  once  been  lodged,  it  cannot,  under  any  circumstances,  be  withdrawn 
without  the  leave  of  the  committee,  wliich  must  be  applied  for  on  the 
day  fixed  for  the  hearing,  or  (by  leave)  at  some  other  meeting  of  the 
committee. 

If  the  case  made  by  the  affidavit  appear  to  the  committee  to  require 
an  answer  from  the  solicitor,  they  appoint  a  day  for  hearing  the  applica- 
tion. A  copy  of  the  application  and  of  the  affidavit,  together  with  notice 
of  the  day  fixed  for  the  hearing,  is  sent  by  the  registrar  to  the  solicitor 
at  his  last  known  place  of  abode  or  business.  Notice  of  the  day  fixed 
is  also  sent  to  the  applicant. 

If  the  case  made  by  the  affidavit  does  not  appear  to  the  committee 
to  call  for  answer  from  the  solicitor,  the  applicant  is  so  informed. 
If  dissatisfied  with  the  decision  he  can  renew  his  application  to  the 
committee  upon  additional  evidence. 

The  applicant  and  the  solicitor  respectively  must  furnish  to  the 
registrar  and  to  each  other  a  list  of  the  documents  which  they  respec- 
tively propose  to  put  in.  Such  list  should  sufficiently  identify  the 
documents  included  in  it,  and  state  whether  they  are  originals  or  copies, 
and  must,  unless  otherwise  ordered  by  the  committee,  be  furnished  by 
the  applicant  at  least  fourteen  days  before  the  day  of  hearing,  and  by 
the  solicitor  within  seven  days  after  he  has  received  the  list  furnished 
by  the  applicant.  These  lists  are  equivalent  to  the  ordinary  notice  to 
produce  and  admit  the  documents  referred  to  therein.  Either  party 
VOL.  XIII.  30 

/ 


466  SOLICITOR 

may  inspect  and  obtain  copies  of  the  documents  included  in  the  list 
furnished  by  the  other.  The  committee  will  not  allow  either  party  to 
put  in  evidence  at  the  hearing  any  document  not  included  in  the  list 
furnished  by  him  without  giving  to  the  other  side  time  to  inspect  and 
consider  it,  if  in  their  opinion  any  injustice  or  hardship  would  be  caused 
by  his  not  having  had  any  previous  opportunity  to  do  so. 

All  notices  may  be  served  by  registered  letter,  and  the  service  is 
sufficiently  proved  by  evidence  that  the  notice  was  properly  addressed 
and  posted. 

Either  party  desiring  to  compel  the  attendance  of  a  witness  can 
obtain  a  certificate  from  the  committee  authorising  him  to  apply  to  a 
judge  in  chambers  for  an  order  for  the  issue  of  a  subpoena  ad  testificandum 
or  duces  tecum. 

At  the  hearing  either  party  may  appear  in  person  or  by  counsel  or 
solicitor.  The  committee  will  not  hear  a  solicitor's  clerk  or  any  other 
agent.  If  the  committee  see  fit  they  may  appoint  a  solicitor  to  repre- 
sent the  applicant,  and  the  costs  of  such  solicitor  will  be  paid  out  of  the 
funds  of  the  Society. 

The  committee  may  proceed  in  the  absence  of  either  party,  if  they 
are  of  opinion  that  such  absence  is  the  result  of  gross  negligence  or  of 
an  intention  to  avoid  or  delay  proceedings.  The  complainant  must  be 
prepared  with  evidence  to  show  that  such  is  the  case. 

If  the  solicitor  does  not  appear  at  the  hearing  and  the  committee 
determine  to  proceed  in  his  absence,  and  in  any  other  case  with  the 
consent  in  writing  of  the  solicitor,  the  committee  may,  either  as  to  the 
whole  case  or  as  to  any  particular  fact  or  facts,  receive  and  act  upon 
evidence  given  by  affidavit,  including  the  affidavit  or  affidavits  upon 
which  the  application  is  made.  All  such  affidavits  must  be  sworn  in 
accordance  with  the  provisions  of  the  Commissioners  for  Oaths  Act, 
1889.  In  all  other  cases  the  evidence  is  given  orally,  and  either  on 
oath  or  affirmation.  The  chairman  administers  the  oath,  and  the  wit- 
nesses are  examined  and  cross-examined,  and  the  whole  hearing  is 
conducted,  so  far  as  possible,  like  an  ordinary  action  at  Nisi  Prius.  The 
applicant  must  in  every  case  attend  and  be  prepared  to  give  oral 
evidence.  The  committee  may  at  any  moment  stop  the  proceedings  on 
the  ground  that  no  primd  facie  case  of  professional  misconduct  has  been 
made  out  by  the  affidavit  or  evidence  calling  for  an  answer  {E.  v. 
Incorporated  Law  Society,  [1896]  1  Q.  B.  327). 

At  the  close  of  the  inquiry  the  committee  embody  their  finding  in 
a  report,  which  must  be  signed  by  the  chairman  of  the  committee,  and 
is  then  filed  in  the  Central  Office  of  the  High  Court  of  Justice,  with  the 
affidavit  of  the  applicant.  A  copy  of  the  report  is  sent  to  both  the 
applicant  and  the  solicitor.  If  it  is  favourable  to  the  solicitor,  the  duties 
of  the  committee  are  at  an  end ;  it  need  not  take  any  further  proceeding 
{R.  V.  Incorporated  Law  Society,  [1896]  1  Q.  B.  327).  But  the  applicant, 
if  still  dissatisfied,  may  bring  the  report  before  the  Court,  and  apply  for 
an  order  striking  the  solicitor  off  the  roll,  or  requiring  him  to  answer 
the  allegations  contained  in  the  affidavit,  although  the  committee  is  of 
opinion  that  there  is  no  primd  facie  case  of  misconduct  against  the 
solicitor.  The  applicant  on  such  a  motion  cannot  be  heard  in  person, 
but  must  appear  by  counsel  {In  re  A  Solicitor,  [1903]  2  K.  B.  205).  The 
solicitor,  on  the  other  hand,  may  apply  to  a  Divisional  Court  (not  to  a 
judge  at  chambers)  for  the  costs  of  the  inquiry  before  the  committee  of 
the  Law  Society  if  it  has  exonerated  him  from  the  charges  made  against 
him  {In  re  Davidson,  [1899]  2  Q.  B.  103). 


SOLICITOE  467 

If,  however,  the  finding  of  the  committee  is  adverse  to  the  solicitor, 
it  is  the  duty  of  the  Society  to  bring  the  report  before  the  Court  (s.  13). 
The  report  is  accordingly  set  down  by  the  Society  for  consideration  by 
the  Court.  Notice  is  sent  to  the  parties  of  the  day  for  which  it  is 
entered,  and  counsel  on  behalf  of  the  Law  Society  will  be  instructed  to 
appear.  The  applicant  and  the  solicitor  are  also  entitled  to  attend ;  the 
former  must  be  represented  by  counsel  {In  re  A  Solicitor,  [1903]  2  K,  B. 
205).  The  report  of  the  committee  has  the  same  effect,  and  will 
be  treated  by  the  Court  in  the  same  manner,  as  a  report  of  a 
Master  of  the  Court.  It  is  by  no  means  conclusive;  the  Court  may 
make  such  order  thereon  as  it  sees  fit.  Thus,  where  the  committee  had 
reported  that  though  the  conduct  of  a  solicitor  was  extremely  repre- 
hensible, they  did  not  find  him  guilty  of  professional  misconduct,  the 
Divisional  Court  and  the  Court  of  Appeal  took  a  graver  view  of  the 
solicitor's  conduct,  and  suspended  him  for  two  years  {In  re  Davies,  1898, 
14  T.  L.  R.  332).  If  on  consideration  of  the  report  the  Court  makes  an 
order  adverse  to  the  solicitor,  the  registrar  must  make  such  entry  on,  or 
alteration  in,  the  roll  of  solicitors  as  is  involved  in  the  order.  In  some 
cases,  even  though  the  solicitor  be  not  struck  off"  the  roll,  an  order  will 
be  made  that  he  should  bring  money  into  Court,  and  that  he  pay  all  the 
costs  of  the  application.  If  he  do  not  pay  the  money  into  Court,  he  may 
be  attached.  If  in  any  case  he  fail  to  pay  costs  which  he  has  been  ordered 
to  pay,  the  proper  procedure  is  to  bring  an  action  for  them  {Godfrey  v. 
George,  [1896]  1  Q,  B.  49).  And  such  an  action  will  lie,  although  the 
plaintiff"  had  previously  made  an  unsuccessful  application  to  the  Court 
to  attach  the  solicitor  for  disobedience  to  the  order  {ibid.). 

An  order  striking  a  solicitor  off"  the  roll  is  not  made  in  a  "  criminal 
€au8e  or  matter  "  within  the  meaning  of  sec.  47  of  the  Judicature  Act, 
1873 ;  hence  the  Court  of  Appeal  has  jurisdiction  to  hear  an  appeal  by 
the  solicitor  against  such  order  {In  re  Eede,  1890,  25  Q.  B.  D.  228 ;  In 
re  Davies,  supra). 

As  to  striking  a  solicitor  off*  the  roll  at  his  own  request,  see  ante, 
p.  442. 

IX.  Partnerships  between  Solicitors. 

Only  duly  qualified  solicitors  can  carry  on  legal  business  in  partner- 
ship. Any  agreement  or  arrangement,  which  is  in  fact  a  partnership 
between  a  solicitor  and  an  unqualified  person,  is  illegal ;  and  the  solicitor 
may  be  struck  off"  the  roll,  and  the  unqualified  person  is  liable  to 
■criminal  proceedings  under  sec.  32  of  the  SoL  Act,  1843.  This,  how- 
■ever,  will  not  prevent  the  executors  of  a  deceased  partner  receiving  his 
share  of  the  profits  of  the  business  conducted  by  the  surviving  partners, 
if  they  are  entitled  so  to  do  by  a  provision  in  the  partnership  deed. 

Pupils  may  be  articled  either  to  the  firm  or  to  one  partner.  Each 
partner  may  have  two  pupils,  if  the  firm  has  none ;  and  the  premium,  in 
the  absence  of  any  special  agreement,  belongs  to  the  individual  partner 
and  not  to  the  firm.  If  the  pupils  are  bound  to  the  firm,  the  firm  can 
have  only  two  pupils,  however  many  partners  it  may  contain,  and  in 
this  case  the  premium  belongs  to  the  partnership. 

Where  one  partner  holds  an  office,  e.g.  as  town  clerk  or  clerk  to 
justices,  the  salary,  in  the  absence  of  express  agreement,  belongs  to  him 
exclusively.  But  a  clause  is  generally  inserted  in  the  deed  of  partner- 
ship providing  that  the  salary  and  all  other  benefits  derived  from  the 
appointment  shall  be  treated  as  partnership  assets.     And  this  is  only 


468  SOLICITOR 

fair,  as  the  time  of  that  partner  is  occupied  with  business  in  which  the 
firm  has  no  interest. 

Liability  of  one  Partner  for  the  Acts  and  Defaults  of  Another. — This 
liability  is  extensive,  and  solicitors  should  be  very  careful  in  choosing 
their  partners.  A  soUcitor  is  of  course  liable  for  every  act  or  default  of 
his  partner  of  which  he  has  knowledge,  and  to  which  he  consents.  But 
he  is  also  liable  for  every  act  or  default  done  or  committed  by  his 
partner  within  the  scope  of  the  ordinary  business  of  the  firm,  although 
he  had  no  notice  of  it ;  for  each  partner  is  the  agent  of  the  other  with 
regard  to  all  matters  within  that  scope  (Blyth  v.  Fladgate,  [1891]  1  Ch. 
337).  Where  the  name  of  a  firm  of  solicitors  appears  upon  the  records 
of  any  Court  as  solicitors  for  a  party  to  a  suit,  each  partner  m,  primd 
facie,  personally  liable  for  any  misconduct  on  the  part  of  any  member 
of  the  firm  {In  re  Manly,  1856,  3  Sm.  &  G.  375  ;  65  E.  R.  701 ;  26  L.  J. 
Ch.  313). 

Thus,  it  is  part  of  the  ordinary  business  of  a  firm  of  solicitors  that  has 
the  conduct  of  a  sale  by  the  Court  to  pay  the  deposits  into  Court  for  the 
auctioneer.  Hence  if  one  member  of  such  a  firm  receives  a  deposit  from 
the  auctioneer,  and  misappropriates  it,  his  partners  are  liable  {Biggs  v. 
Bree,  1882,  51  L.  J.  Ch.  363 ;  46  L.  T.  8).  But  it  is  not  part  of  the 
ordinary  business  of  a  solicitor  to  receive  the  purchase-money  belonging 
to  his  client,  or  the  repayment  of  mortgage-money ;  and  one  partner  is 
not  therefore  liable  for  the  misapplication  of  money  so  received  by  his. 
partner  without  his  knowledge  {Bourdillon  v.  Roche,  1858,  27  L.  J.  Ch. 
681 ;  Sims  v.  Brutton,  1850,  5  Ex.  Eep.  802 ;  20  L.  J.  Ex.  41). 

A  solicitor  is  generally  liable  for  any  fraud  or  breach  of  trust  com- 
mitted by  his  partner  in  the  course  of  the  professional  business  of  the- 
firm  {Blair  v.  Bromley,  1847,  5  Hare,  542 ;  67  E.  R.  1026 ;  71  R.  R.  213 ;. 
16  L.  J.  Ch.  105,  496  ;  Sawyer  v.  Goodwin,  1867,  36  L.  J.  Ch.  578 ; 
St.  Aubyn  v.  Smart,  1868,  L.  R.  3  Ch.  646  ;  Farl  of  Dundonald  v. 
Masterman,  1869,  L.  R.  7  Eq.  504).  But  it  is  beyond  the  ordinary  scope 
of  the  business  of  a  solicitor  for  him  to  receive  on  deposit,  and  hold  for 
his  client,  bonds  payable  to  bearer.  Hence  in  the  absence  of  clear 
notice  of  such  deposit,  one  partner  will  not  be  responsible  for  the  safe 
custody  of  bonds  so  received  by  another  {Cleather  v.  Twisden,  1883,  24 
Ch.  D.  731 ;  1884,  28  Ch.  D.  340 ;  Rhodes  v.  Monies,  [1895]  1  Ch.  236). 
Again,  it  is  not  within  the  scope  of  the  implied  authority  of  a  solicitor 
carrying  on  business  in  partnership  to  constitute  himself  a  constructive 
trustee ;  he  cannot  therefore  subject  his  innocent  partner  to  liability  in 
that  character  {Mara  v.  Browne,  [1896]  1  Ch.  199;  and  see  Marshy. 
Joseph,  [1897]  1  Ch.  213).  As  to  when  a  solicitor  becomes  liable  as 
a  constructive  trustee,  see  Brinsden  v.  Williams,  [1894]  3  Ch.  185. 

One  member  of  a  firm  of  solicitors  has  no  implied  authority  to  bind 
his  partner  by  a  promissory  note  in  the  name  of  the  firm,  though  given 
for  their  debt  {Hedley  v.  Bainhridge,  1842,  3  Q.  B.  316  ;  61  R.  R.  239);, 
or  by  a  post-dated  cheque  {Forster  v.  Mackreth,  1867,  L.  R.  2  Ex.  163); 
or  by  drawing  or  indorsing  a  bill  of  exchange  {Garland  v.  Jacomh,  1873,, 
L.  R.  8  Ex.  216);  or  by  a  guarantee  {Hasleham  v.  Young,  1844,  5  Q.  B. 
833).  So  one  partner  is  not  liable  for  money  borrowed  without  his 
knowledge  by  another,  even  though  borrowed  in  the  name  of  the  firm 
{Plumer  v.  Gregory,  1874,  L.  R.  18  Eq.  621). 

In  connection  with  an  advance  of  money  on  mortgage,  a  solicitor  may 
be  employed  in  three  ways — (1)  Ministerially  to  draw  up  the  documents 
relative  to  an  advance  which  the  client  has  already  agreed  to  make  on  a 


SOLICITOR  469 

certain  security ;  (2)  to  find  securities  which  he  is  to  submit  to  his  client, 
who,  if  he  approves  of  them,  will  then  invest  his  money  thereon ;  (3)  to 
receive  his  client's  money,  and  hold  it  till  he  can  find  a  proper  security, 
and  then  invest  it  for  his  client  thereon.  Different  liabilities  attach  to 
the  solicitor  in  each  case  (see  Dooby  v.  Watson,  1888,  39  Ch.  D.  178; 
Stokes  V.  Prance,  [1898]  1  Ch.  212).  In  the  first  two  cases,  it  is  sub- 
mitted, the  transaction  falls  properly  within  the  scope  of  the  ordinary 
professional  work  of  a  solicitor ;  and  for  any  negligence  or  misconduct 
committed  therein,  innocent  partners  would  therefore  be  liable.  But  in 
the  third  case  the  solicitor  is  employed  to  do  the  work  of  a  scrivener, 
rather  than  a  solicitor  (see  Scrivener),  It  has  been  decided,  therefore, 
that  one  member  of  a  firm  of  solicitors  cannot  render  his  co-partners 
liable,  simply  by  receiving  money  indefinitely  for  the  purpose  of  being 
subsequently  laid  out  on  mortgage  securities  not  yet  obtained  (Harman 
V.  Johnson,  1853,  2  El.  &  Bl.  61 ;  22  L.  J.  Q.  B.  297). 

It  was  formerly  held  that  the  liability  of  an  innocent  solicitor  for  a 
debt  or  liability  incurred  through  any  fraud  or  breach  of  trust  committed 
by  his  partner  was  not  discharged  by  his  bankruptcy,  owing  to  the 
wording  of  sec.  49  of  the  Bankruptcy  Act,  1869  (Cooper  v.  Prichard, 
1883,  11  Q.  B.  D.  351).  But  the  law  has  been  altered  (Bankruptcy  Act, 
1883,  s.  30  (1)),  and  the  innocent  partner  is  now  discharged.  Where  a 
trustee,  who  is  being  sued  to  replace  a  trust  fund  lost  by  the  default  of 
his  co-trustee,  who  was  a  solicitor,  claims  to  have  the  loss  made  good 
by  the  partners  of  that  defaulting  trustee,  this  is  not  the  claim  for 
indemnity  enforceable  by  third-party  procedure  under  Order  16,  r.  48; 
for  the  right  of  the  trustee  now  sued  to  recover  from  the  partners  of  his 
co-trustee  is  not  dependent  on  his  own  liability  to  replace  the  trust  fund 
(Wynne  v.  Tempest,  [1897]  1  Ch.  110). 

Dissolution  of  Partnership;  Goodwill. — The  death  of  a  partner  at  once 
puts  an  end  to  any  existing  partnership.  And  a  dissolution,  caused  thus 
or  in  any  other  way,  at  once  puts  an  end  to  all  retainers ;  as  every  client 
is  in  theory  entitled  to  the  services  of  each  individual  member  of  the 
firm  (Eawlinson  v.  Moss,  1861,  30  L.  J.  Ch.  797).  The  client  is  entitled 
at  once,  if  he  wishes,  to  appoint  a  new  solicitor  to  carry  out  his  business; 
and  his  papers  must  be  handed  over  to  the  new  solicitor  for  that  purpose 
(ibid.).  The  partnership  deed  usually  disposes  of  the  "goodwill  "  on  the 
dissolution  of  a  firm  of  solicitors  and  provides  for  the  apportionment 
among  its  members  of  the  clients  of  the  old  firm  with  their  papers.  But 
such  an  arrangement  is  of  course  not  binding  on  the  clients,  who  are  free 
to  consult  and  retain  whomsoever  they  choose,  whether  a  member  of  the 
former  firm  or  not.  In  fact,  "the  term  'goodwill'  seems  wholly  in- 
applicable to  the  business  of  a  solicitor,  which  has  no  local  existence, 
but  is  entirely  personal,  depending  upon  the  trust  and  confidence  which 
persons  may  repose  in  his  integrity  and  ability  to  conduct  their  legal 
affairs  "  (per  Lord  Chelmsford,  L.C.,  in  Austen  v.  Boys,  1858,  27  L.  J.  Ch., 
at  p.  718 ;  and  see  Arundell  v.  Bell,  1883,  52  L.  J.  Ch.  537). 

X.  Country  Solicitor  and  London  Agent. 

The  certificate  of  a  country  solicitor  does  not  enable  him  to  practise 
in  town.  Hence  nearly  every  country  solicitor  employs  a  London 
solicitor  to  act  as  his  town  agent.  The  ordinary  rules  of  the  law  of 
principal  and  agent  apply  to  such  a  case.  The  country  solicitor  is  alone 
answerable  to  the  client,  the  London  agent  is  answerable  only  to  the 


470  SOLICITOR 

country  solicitor  for  any  negligence  or  misconduct  {In  re  Farman,  1897, 
14  T.  L.  E.  20).  The  London  agent  owes  no  direct  duty  to  the  lay 
client,  whose  only  remedy,  therefore  (at  all  events  in  the  absence  of 
fraud),  is  against  the  country  solicitor  {Simmons  v.  Rose,  1862,  31  Beav.  1 ; 
54  E.  R.  1037).  There  is  no  privity  between  the  client  and  the  London 
agent ;  hence  the  client  cannot  sue  the  agent  for  money  received  to  his 
use  {Collins  v.  Brook,  1860,  29  L.  J.  Ex.  255),  or  on  any  other  implied 
contract  {Hannaford  v.  Syms,  1898,  79  L.  T.  30).  The  country  solicitor 
is,  in  fact,  the  client  of  the  London  agent ;  the  lay  client  is  the  client  of 
the  country  solicitor  alone.  If,  however,  it  appears  that  money  has 
been  received  in  an  action  by  the  London  agent,  without  authority, 
either  from  the  client  or  the  country  solicitor,  the  Court  will,  if  the 
agent  be  a  solicitor  of  the  Court,  compel  him,  upon .  application,  to  pay 
over  the  proceeds  to  the  client,  although  the  country  solicitor  be  in- 
debted to  the  London  agent  in  a  greater  sum  on  other  accounts  {Bobbins 
V.  Fennell,  1847, 11  Q.  B.  248;  Bx  parte  Edwards,  1881,  8  Q.  B.  D.  262). 
But  not  where  the  money  is  given  by  the  client  to  the  country  solicitor, 
and  by  him  forwarded  to  the  London  agent  {Cobb  v.  Becke,  1845,  6  Q.  B. 
930 ;  66  R.  R.  606 ;  and  see  Peatfield  v.  Barloio,  1869,  L.  R.  8  Eq.  61). 

The  London  agent  must,  when  required,  deliver  a  bill  of  costs  to  the 
country  solicitor;  and  such  a  bill  is  taxable  {Smith  v.  Dimes,  1849,  4  Ex. 
Rep.  32 ;  19  L.  J.  Ex.  60 ;  In  re  Nelson,  Son  &  Hastings,  1885,  30  Ch.  D.  1 ; 
St07'er  &  Co.  v.  Johnson  &  Weatherall,  1890,  15  App.  Cas.  203).  The 
country  solicitor  in  his  turn  ought  to  incorporate  the  details  of  the 
charges  of  the  London  agent  in  his  bill  of  costs  against  the  lay  client 
{In  re  Pomeroy  &  Tanner,  [1897]  1  Ch.  284).  A  London  solicitor  acting 
as  agent  for  a  country  solicitor  has  a  general  lien  against  the  country 
solicitor  upon  any  money  recovered  in  an  action,  for  all  costs  for  agency 
business,  and  disbursements  due  from  the  country  solicitor  whether 
in  the  particular  action  or  in  any  other  proceedings  {In  re  Jones  & 
Roberts,  [1905]  2  Ch.  219).  But  as  between  the  London  agent  and  the 
client,  the  lien  of  the  former  extends  only  to  the  costs  of  the  particular 
action  in  which  he  is  engaged  {laiurence  Y.Fletcher,  1879,  12  Ch.  D.  858). 
A  London  agent,  who  has  the  general  conduct  of  a  cause  on  behalf  of 
a  country  solicitor,  possesses  the  same  general  authority  as  he  would 
in  any  action  in  which  he  was  the  only  solicitor  employed ;  he  has, 
therefore,  power  to  compromise  the  action  in  any  bond  fide  and  reason- 
able manner,  unless  such  general  authority  has  been  expressly  limited 
{In  re  Newen,  [1903]  1  Ch.  812).  The  usual  agency  terms  are  that  the 
London  agent  is  entitled  to  half  the  profit  charges,  and  to  be  repaid  all 
out-of-pocket  expenses.  But  where  the  London  firm  and  the  country 
firm  have  a  common  partner  the  usual  agency  fees  will  not  be  allowed 
{In  re  Borough,  etc.,  Building  Society,  [1894]  1  Ch.  289). 

XI.  Solicitor's  Remuneration. 

A  solicitor  is  entitled,  like  any  other  professional  man,  to  be  re- 
munerated for  his  services;  but  standing  as  he  does  in  a  special  and 
fiduciary  relation  towards  his  client,  the  amount  of  his  remuneration  is 
not  left  to  be  determined  by  the  ordinary  principles  of  contract.  On 
the  contrary,  any  agreement  on  the  subject  that  he  may  make  with  his 
client  must  comply  with  certain  conditions,  and  the  burden  of  sustain- 
ing the  agreement  if  impeached  will  be  thrown  on  the  solicitor  {In  re 
Baylis,  [1896]  2  Ch.  p.  119,  per  Kay,  L.J.);  while  if  the  parties  have 


SOLICITOE  471 

made  no  special  agreement,  the  solicitor,  before  he  can  sue  for  payment, 
must  render  a  detailed  statement  of  the  work  done,  and  his  charges  for 
the  same,  in  the  form  of  a  bill  of  costs ;  and  only  such  charges  can  be 
made  as  are  allowed  by  law  (see  Bill  of  Costs,  Vol.  II.  p.  184 ; 
XII.  Eefekence  to  Taxation,  infra,  p.  481). 

Agreements  for  Remuneration. — An  agreement  for  the  remuneration 
of  a  solicitor,  to  be  binding  on  both  parties,  must  be  in  writing,  a  parol 
agreement,  though  it  may,  it  seems,  be  enforced  against  the  solicitor 
(Ibberson  v.  Mck,  1886,  2  T.  L.  E.  427 ;  Jennings  v.  Johnson,  1873,  L.  E. 
8  C.  P.  425 ;  Clare  v.  Joseph,  [1907J  2  K.  B.  369),  being  void  against  the 
client  (In  re  Russell,  Son  &  Scott,  1885,  30  Ch.  D.  114;  In  re  Raven, 
1881,  45  L.  T.  742).  Practically,  agreements  for  the  remuneration  of  a 
solicitor  are  almost  invariably  made  in  writing,  and  the  law  is  governed 
by  two  statutes — in  the  case  of  contentious  business  by  the  Sol.  Act, 
1870,  and  in  the  case  of  non-contentious  and  conveyancing  business  by 
the  Sol.  Eemuneration  Act,  1881. 

(a)  In  Contentious  Business. — By  the  Sol.  Act,  1870,  s.  4,  as  amended 
by  the  Sol.  Eemuneration  Act,  1881,  s.  9,  a  solicitor  may  make  an  agree- 
ment in  writing  with  his  client  respecting  the  amount  and  manner  of 
payment  for  any  past  or  future  services,  fees,  charges,  or  disbursements, 
either  by  a  gross  sum  or  by  commission  or  percentage,  or  by  salary  or 
otherwise,  and  either  at  the  same  or  at  a  greater  or  less  rate  as  or  than 
the  rate  at  which  he  would  otherwise  be  entitled  to  be  remunerated ; 
but  the  amount  payable  under  the  agreement  is  not  to  be  received  by 
the  solicitor  until  the  agreement  has  been  examined  and  allowed  by  a 
Taxing-Master.  If  the  Master  considers  that  the  agreement  is  not  "  fair 
and  reasonable,"  he  may  require  the  opinion  of  the  Court  to  be  taken 
thereon,  and  the  Court  may  either  reduce  the  amount  payable  under 
the  agreement  or  order  the  agreement  to  be  cancelled,  and  the  costs 
to  be  taxed  as  if  no  agreement  had  been  made  (see  In  re  Attorneys 
and  Solicitors  Act,  1870,  1875,  1  Ch.  D.  p.  575). 

In  this  Act  the  word  "  solicitor  "  means  a  duly  qualified  solicitor  or 
proctor ;  "  person  "  includes  a  corporation ;  and  "  client "  includes  any 
person  who,  as  a  principal  or  on  behalf  of  another  person,  employs,  or  is 
about  to  employ,  a  solicitor,  and  any  person  who  is  or  may  be  liable  to 
pay  the  bill  of  a  solicitor  (s.  3).  The  Act  does  not  apply  to  accounts 
between  country  solicitors  and  their  London  agents  (  Ward  v.  Eyre,  1880, 
15  Ch.  D.  130). 

An  agreement  as  to  the  cost  of  business  done  by  a  solicitor  in  a  Police 
Court  or  at  Quarter  Sessions  is  within  the  Act,  and  may  be  examined 
into  and  set  aside  by  a  judge  of  the  High  Court  {In  re  Jones,  [1895] 
2Ch.  719;  [1896]  1  Ch.  222). 

The  agreement  will  be  binding  though  signed  only  by  the  client 
{In  re  Thompson;  Ex  parte  Baylis,  [1894]  1  Q.  B.  462;  In  re  Jones; 
Bake  v.  French,  [1907]  2  Ch.  215).  An  agreement  by  a  solicitor  not  to 
charge  anything  for  costs  if  his  client  wins  his  action,  and  if  he  loses  it 
to  charge  him  only  such  costs  as  he  would  have  recovered  from  the 
other  side  if  the  action  had  been  successful,  is  not  within  the  Act,  and 
may  be  made  by  parol  {Clare  v.  Joseph,  [1907]  2  K.  B.  369 ;  and  see 
Jennings  v.  Johnson,  1873,  L.  E.  8  C.  P.  425). 

A  formal  agreement  is  not  necessary,  but  the  document  relied  on 
must  amount  in  point  of  law  to  an  agreement — a  mere  casual  letter  will 
not  suffice  {Pontifex  v.  Farnham,  1892,  62  L.  J.  Q.  B.  344). 


472  SOLICITOR 

The  agreement  will  not  affect  any  costs  recoverable  from  the  client 
by  any  other  person,  or  payable  to  the  client  by  any  other  person, 
who  may  require  any  costs  payable  or  recoverable  by  him  to  or  from 
the  client  to  be  taxed  in  the  ordinary  way,  unless  he  has  otherwise 
agreed ;  but  the  client  will  not  be  entitled  to  recover  from  any  other 
person  under  any  order  for  the  payment  of  any  costs  which  are  the 
subject  of  such  agreement  more  than  the  amount  payable  by  the  client 
to  the  solicitor  under  the  agreement  (s.  5).  As  to  the  proper  mode  of 
taxing  costs  payable  by  a  third  party  to  a  public  body  who  employ  a 
solicitor  at  a  fixed  salary,  see  Henderson  v.  Merthyr  Tydfil  Urban  District 
Council,  [1900]  1  Q.  B.  434. 

An  agreement  will  exclude  any  further  claim  of  the  solicitor  for 
costs  in  relation  to  the  business  in  reference  to  which  the  agreement  is 
made,  except  such,  if  any,  as  are  expressly  excepted  by  the  agreement 
(s.  6). 

Any  provision  relieving  the  solicitor  from  liability  for  negligence,  or 
from  any  responsibility  to  which  he  would  otherwise  be  subject,  will  be 
void  (s.  7).  No  action  can  be  brought  on  the  agreement,  but  every 
question  respecting  its  validity  or  eflect  may  be  decided,  and  the  agree- 
ment enforced  or  set  aside  by  the  Court  on  the  application  of  any  party 
to  the  agreement,  or  any  person  liable  to  pay,  or  entitled  to  be  paid,  the 
costs  in  respect  of  which  the  agreement  is  made  (s.  8).  If  the  Court 
thinks  the  agreement  "  fair  and  reasonable,"  it  may  enforce  it,  with  or 
without  conditions ;  if  not,  it  may  order  the  agreement  to  be  cancelled, 
and  the  costs  to  be  taxed  in  the  usual  way  (s,  9). 

An  application  to  set  aside  an  agreement  may  be  made  by  motion, 
petition,  or  summons  (s.  8 ;  In  re  Thomas,  [1893]  1  Q.  B.  670).  The 
agreement  must  not  only  be  "  fair  "  in  the  sense  that  it  was  understood 
by  the  client,  but  must  also  be  "  reasonable "  in  amount,  having 
regard  to  the  work  done.  Accordingly,  where  the  effect  of  the  agree- 
ment was  to  entitle  the  solicitor  to  nearly  £100  for  work  which  would 
have  been  properly  remunerated  by  a  sum  of  £20,  the  Court  set  it  aside 
{In  re  Stuart ;  Ex  parte  Catlicart,  [1893]  2  Q.  B.  201).  When  the  client, 
after  making  the  agreement,  refuses  to  employ  the  solicitor,  and  so 
prevents  him  earning  the  agreed  remuneration,  an  action  for  damages 
will  lie  {Rees  v.    Williams,  1875,  L.  E.  10  Ex.  200). 

If  the  amount  due  under  the  agreement  has  been  paid,  the  Court  may, 
under  special  circumstances,  re-open  the  agreement  within  twelve  months 
after  payment,  and  direct  taxation  of  the  costs  and  repayment  by  the 
solicitor  (s.  10);  and  as  to  "special  circumstances,"  see  cases  under  the 
Sol.  Act,  1843,  post,  p.  485. 

Where  the  client  is  a  guardian,  trustee,  or  committee,  the  agreement 
must  before  payment  be  approved  by  a  Taxing-Master,  and  he  may 
require  the  direction  of  the  Court  to  be  taken  on  it.  If  the  client  pays 
without  first  obtaining  such  approval,  he  will  be  liable  to  account 
for  the  amount  to  the  person  whose  property  is  charged  with  the  pay- 
ment, and  the  solicitor  may  be  ordered  to  refund  what  he  has  received 
(s.  10). 

The  Act  will  not  give  validity  to  any  purchase  by  a  solicitor  of 
his  client's  interest  in  any  action,  or  to  any  agreement  by  which  the 
solicitor  stipulates  for  payment  only  in  the  event  of  success  (s.  11); 
or  give  validity  to  any  disposition  or  transfer  which  may  be  void 
against  a  trustee  or  creditor  in  bankruptcy,  arrangement,  or  com- 
position (s.  12). 


SOLICITOR  473 

An  agreement  by  which,  in  the  event  of  success,  the  solicitor  is  to 
receive  what  is  equivalent  to  a  tenth  part  of  the  property  recovered 
is  clearly  void  {In  re  Attorneys  and  Solicitors  Act,  1870,  1875,  1  Ch. 
D.  573). 

If  the  solicitor  dies  or  becomes  incapable  to  act  when  the  agreement 
has  been  only  partly  performed,  any  party  to  the  agreement  may  apply 
to  the  Court,  and  the  Court  will  thereupon  have  the  same  power  to 
enforce  or  set  aside  the  agreement,  so  far  as  it  may  have  been  acted 
upon,  as  if  such  death  or  incapacity  had  not  happened ;  and  the  Court, 
if  the  agreement  is  fair  and  reasonable,  may  order  the  amount  due  in 
respect  of  the  past  performance  of  the  agreement  to  be  ascertained  by 
taxation,  and  the  Taxing-Master  will  have  regard  to  the  terms  of  the 
agreement,  and  payment  of  the  amount  due  may  be  enforced  in 
the  same  manner  as  if  the  agreement  had  been  completely  performed 
(s.  13). 

If  the  client  changes  his  solicitor  before  the  conclusion  of  the 
business  (which  he  may  do,  notwithstanding  the  agreement),  the 
solicitor  will  be  deemed  to  have  become  incapable  to  act  within  the 
meaning  of  sec.  13,  and  upon  any  order  for  taxation  of  the  amount  due 
in  respect  of  the  past  performance  of  the  agreement,  the  Court  will 
direct  the  Taxing-Master  to  have  regard  to  the  circumstances  under 
which  the  change  took  place;  and  the  solicitor  will  not  be  entitled  to 
the  full  amount  of  the  agreed  remuneration  unless  it  appears  that  there 
has  been  no  improper  conduct  on  his  part  affording  reasonable  ground 
for  the  change  (s.  14). 

Except  as  in  the  Act  provided,  the  bill  of  a  solicitor  for  the  amount 
due  under  an  agreement  is  not  subject  to  taxation,  nor  to  the  provisions 
of  the  Sol.  Act,  1843  (s.  15;  In  re  Jones,  [1895]  2  Ch.  719;   [1896] 

1  Ch.  222). 

(h)  In  Conveyancing  and  Non-contentious  Business. — The  Sol.  Re- 
muneration Act,  1881,  8.  8,  subs.  1,  provides  that,  with  respect  to 
conveyancing  and  non-contentious  business  (whether  any  General  Order 
under  the  Act  is  in  operation  or  not),  a  solicitor  may  make  an  agreement 
with  his  client  for  the  remuneration  of  the  solicitor  to  such  amount  and 
in  such  manner  as  the  parties  think  fit,  either  by  a  gross  sum  or  by 
commission  or  percentage,  or  by  salary,  or  otherwise  (see  In  re  Montagu 
Scott  &  Baker,  1889,  W.  N.  40). 

The  agreement  must  be  in  writing,  signed  by  the  person  to  be  bound 
thereby,  or  his  agent  (s.  8,  subs.  1 ;  In  re  Frape ;  Ex  parte  Perrett,  [1893] 

2  Ch.  284) ;  and  may  be  made  on  the  terms  that  the  amount  of  the 
remuneration  shall  either  include  or  not  include  all  or  any  disbursements 
in  respect  of  searches,  plans,  travelling,  stamps,  fees,  or  other  matters 
(s.  8,  subs.  3). 

"  Solicitor  "  in  this  Act  means  a  duly  qualified  solicitor  or  proctor ; 
"  client "  (see  In  re  Allen,  1887,  34  Ch.  D.  433)  includes  any  person  who 
as  a  principal,  or  on  behalf  of  another,  or  as  trustee  or  executor,  or  in 
any  other  capacity,  employs,  or  is  about  to  employ  a  solicitor,  and  any 
person  for  the  time  being  liable  to  pay  to  a  solicitor  any  costs  or 
disbursements ;  and  "  person  "  includes  a  body  of  persons  corporate  or 
unincorporate  (s.  1,  subs.  3). 

The  agreement  may  be  sued  on,  or  impeached,  and  set  aside  in  the 
same  manner  and  on  the  same  grounds  as  an  agreement  not  relating  to 
the  remuneration  of  a  solicitor ;  and  if,  under  any  order  for  taxation, 
the  client  objects  to  the  agreement  as  unfair  or  unreasonable,  the  Taxing- 

/ 


474  SOLICITOE 

Master  may  inquire  into  the  facts,  and  certify  the  same  to  the  Court ; 
and  if,  upon  such  certificate,  the  Court  thinks  that  just  cause  has  been 
shown  either  for  cancelUng  the  agreement  or  for  reducing  the  amount 
payable  under  it,  the  Court  may  order  such  cancellation  or  reduction 
(s.  8,  subs.  4). 

The  question  of  the  propriety  of  the  agreement  may  therefore  be 
raised  in  different  ways : — 

1.  The  client,  if  he  thinks  the  agreement  unfair  or  unreasonable,  may 
bring  an  action  to  set  it  aside  (Mearns  v.  Knapp,  1889,  37  W.  K.  585 ; 
In  re  Gray,  1886,  30  Sol.  J.  551). 

2.  The  question  may  be  raised  on  a  summons  for  taxation ;  and  if  on 
such  a  summons  the  evidence  discloses  an  agreement,  and  that  there  are 
grounds  for  suspecting  unfairness,  the  Court  will  order  the  Taxing-Master 
in  taxing  the  costs  to  consider  the  propriety  of  the  agreement  {In  re 
Frape  ;  Ex  parte  Perrett). 

3.  The  question  may  be  raised  on  taxation  under  an  order  of  course 
obtained  by  the  client,  for  the  mere  fact  that  there  is  an  agreement  is 
no  bar  to  his  obtaining  such  an  order  {In  re  Inderwick,  1883,  25  Ch.  D. 
279);  and  the  Taxing-Master  will  then  inquire  into  the  matter,  and 
certify  the  facts  to  the  Court,  who  can  then  deal  with  the  matter  under 
subs.  4  {In  re  Frape  ;  Ex  parte  Perrett). 

Remuneration  in  the  Absence  of  Special  Agreement. — In  the  absence 
of  a  special  agreement,  a  solicitor  is  bound  to  make  out  a  detailed  bill 
of  his  charges  against  his  client  (see  Bill  of  Costs,  Vol.  II.  p.  184). 
The  particulars  of  which  the  bill  is  composed  will  vary  according  to 
the  nature  of  the  work  done.  If,  for  instance,  the  solicitor  has  been 
employed  in  business  in  the  High  Court,  the  work  done  will  be  charged 
for  according  to  either  the  higher  or  lower  scale  prescribed  by  the  Eules 
of  Court,  whichever  is  applicable,  the  lower  scale  being  that  whicli 
ordinarily  applies,  though  the  higher  scale  may  be  allowed  on  special 
grounds;  see  Order  65,  rr.  8,  9,  10,  and  Appendix  N,  the  charges  in 
which  apply  to  a  taxation  as  between  a  solicitor  and  his  own  client,  as 
well  as  between  party  and  party  {In  re  Harrison,  1886,  33  Ch.  D.  52). 
So  if  the  work  has  been  done  in  the  House  of  Lords,  the  Privy  Council, 
the  County  Court,  in  bankruptcy,  or  elsewhere,  the  bill  will  be  made 
out  according  to  the  scale  of  allowances  applicable  to  that  particular 
class  of  business. 

If,  on  the  other  hand,  the  work  done  has  been  conveyancing,  or 
other  non-contentious  business,  it  will  be  charged  for  in  one  of  the 
following  ways : — 

{a)  The  solicitor  may  elect  that  his  remuneration  shall  be  according 
to  the  system  in  use  prior  to  the  Solicitors'  Eemuneration  Act  and 
Order,  but  subject  to  the  alterations  made  by  Sched.  11.  to  the  Order 
(General  Order,  r.  6).  In  that  case  the  bill  will  specify  each  item  of 
work  done  and  the  charge  made  for  the  same,  every  letter,  attendance, 
draft,  abstract  of  title,  copy,  or  what  not  being  separately  entered  and 
charged  for.  But  any  such  election  must  be  in  writing  under  the  hand 
of  the  solicitor,  and  communicated  to  the  client  before  the  business  is 
undertaken,  or  anything  whatever  done  in  the  matter  {Hester  v.  Hester, 
1887,  34  Ch.  D.  607 ;  In  re  Metcalfe,  1887,  57  L.  T.  925).  The  right  of 
election  is  not  taken  away  by  the  fact  that  the  clients  are  trustees  or  a 
public  body,  nor  is  it  the  duty  of  such  persons  to  prevent  their  solicitor 
from  electing  {In  re  Evans,  [1905]  1  Ch.  290). 


I 


SOLICITOR  475 

(h)  If  the  solicitor  makes  no  such  election,  then  his  remuneration 
will  be  regulated  by  the  General  Order  made  under  the  Solicitors 
Remuneration  Act,  1881,  which,  stating  it  shortly,  provides  (par.  2  of 
the  Order)  that  on  any  sale,  purchase,  or  mortgage,  the  solicitors  of  the 
parties  shall  be  paid  according  to  the  amount  of  the  purchase  or  mort- 
gage money,  the  scale  of  charges  being  set  forth  in  the  first  part  of 
Sched.  I.  to  the  Order ;  that  on  the  granting  of  a  lease  (other  than  a 
mining  lease)  they  shall  be  paid  according  to  the  amount  of  the  rent, 
the  scale  of  charges  being  set  forth  in  the  second  part  of  the  same 
schedule ;  and  that  all  other  business  shall  continue  to  be  charged  for 
according  to  the  old  system  (i.e.  by  item),  but  subject  to  the  alterations 
in  amount  introduced  by  Sched.  II.  to  the  Order. 

As  to  the  general  scope  and  effect  of  the  Order,  see  Parker  v. 
Blenkhorn,  1888,  14  App.  Gas.  10.  The  words  "  solicitor,"  "  client,"  and 
"person"  have  the  meaning  assigned  to  them  by  the  Solicitors  Re- 
muneration Act  (Order,  par.  8 ;  and  see  ante,  p.  473).  The  remunera- 
tion prescribed  by  Sched.  I.  does  not  include  stamps,  counsel's  fees, 
auctioneer's  or  valuer's  charges  (Drielsma  v.  Manifold,  [1894]  3  Ch.  100), 
travelling  expenses,  and  other  similar  disbursements ;  but  it  does 
include  law  stationer's  charges  (In  re  Bead,  [1894]  3  Ch.  238),  and 
allowances  for  the  time  of  the  solicitor  and  his  clerks,  and  for  copying 
and  parchment,  and  other  similar  items  (par.  4).  The  scale  charge  for 
"completing  conveyance"  includes  costs  of  registering  a  memorial  in 
a  register  county  (Grei/  v.  Curtice,  [1899]  1  Ch.  121).  Additional  re- 
muneration may  be  allowed  for  work  by  special  exertion  carried  through 
in  an  exceptionally  short  time  (par.  5). 

Sched.  I.  does  not  apply  where  the  title  has  been  registered  under  the 
Land  Transfer  Acts,  1862  and  1875  (but  see  now  Land  Transfer  Rules, 
1903,  r.  336) ;  or  to  land  out  of  England  (Li  re  Gi'eville's  Settlement,  1888, 
40  Ch.  D.  441) ;  and  the  scale  charges  in  the  first  part  of  Sched.  I.  do  not 
apply  where  the  whole  of  the  work  has  not  been  done  by  the  solicitor 
(In  re  Lacey  &  Son,  1883,  25  Ch.  D.  301;  In  re  HicUey  &  Steward,  1885, 
52  L.  T.  89 ;  In  re  Roniain,  [1903]  1  Ch.  702) ;  nor  in  the  case  of  sales 
under  the  Lands  Clauses  Act,  or  any  other  Act  under  which  the  costs 
are  paid  by  the  purchaser  (Sched.  1.  r.  11;  see  In  re  Burdekin,  [1895] 
2  Ch.  136 ;  In  re  Merchant  Taylors  Co.,  1885,  29  Ch.  D.  209 ;  30  Ch.  D. 
28 ;  In  re  Stewart,  1889,  41  Ch.  D.  494) ;  and  the  scale  for  "  conducting  " 
a  sale  by  auction,  or  for  "negotiating,"  only  applies  where  no  com- 
mission is  paid  by  the  client  to  an  auctioneer  (r.  11 ;  Inre  Wilson,  1885, 
29  Ch.  D.  790;  Burd  v.  Burd,  1889,  40  Ch.  D.  628;  Drielsma  v. 
Manifold,  [1894]  3  Ch.  100;  Cholditch  v.  Jones,  [1896]  1  Ch.  42;  In  re 
Macgowan,  [1891]  1  Ch.  105 ;  Iri  re  Romain).  As  to  the  meaning  of 
"  deducing  title,"  see  In  re  Welly  &  Still,  [1894]  3  Ch.  641 ;  In  re  Webster 
&  Jones's  Contract,  [1902]  2  Ch.  551 ;  In  re  Simmons's  Contract,  [1908]  1  Ch. 
452  (one  title  on  several  contracts) ;  as  to  a  sale  in  lots,  see  In  re  Thomas, 
[1900]  1  Ch.  454;  and  as  to  a  sale  subject  to  incumbrances,  see 
Fortescue  v.  Mercantile  Bank,  [1897]  2  Q.  B.  236.  A  solicitor-mortgagee  is 
entitled  to  the  scale  fee  for  negotiating  the  mortgage  (Inre  Norris,  [1902] 
1  Ch.  741) ;  as  to  the  meaning  of  "  negotiating  loan,"  see  In  re  Furher, 
[1898]  2  Ch.  538.  The  scale  does  not  apply  where  future  advances  are 
contemplated  (Barton  to  Irvine,  1899,  1  Ir.  R.  515). 

The  scale  charge  for  a  lease  includes  the  preliminary  agreement,  if 
any  (In  re  Emanuel,  1886,  33  Ch.  D.  40 ;  Savery  v.  Enfield  Local  Board, 
[1893]  A.  C.  218);  and  see  further  as  to  leases,  In  re  Martin,  1889, 

/ 


476  SOLICITOR 

41  Ch.  D.  381 ;  In  re  Negus,  [1895]  1  Ch.  73 ;  In  re  Horn  &  Francis, 
[1896]  2  Ch.  797 ;  In  re  Hellarcl  &  Bewes,  [1896]  2  Ch.  229 ;  In  re 
McGarel,  [1897]  1  Ch.  400;  ffall  to  Sutton,  [1900]  1  Ir.  R.  137;  Hx 
parte  Connolly,  [1900]  1  Ir.  R.  1 ;  as  to  the  renewal  of  a  lease,  In  re  Baylis, 
[1907]  2  Ch.  54;  and  as  to  the  construction  and  effect  of  the  Act  and 
Order  generally,  see  The  Solicitors  Remuneration  Act,  1881,  and  Digest  oj 
Decisions  and  Opinions,  published  by  the  Law  Society,  5th  ed.,  1906. 

Securities  for  Costs  given  hy  a  Client  to  his  Solicitor. — 

1.  A  solicitor  may  (and  always  might)  accept  a  security  from  his 
client  for  costs  already  incurred,  but  subject  (in  the  absence  of  express 
agreement)  to  the  amount  due  under  the  security  being  ascertained  by 
taxation  {Gardener  v.  Ennor,  1866,  35  Beav.  549 ;  Eyre  v.  Hughes,  1876, 
2  Ch.  D.  148 ;  Harrison  v.  Wiltshire,  1839,  2  Jur.  679).  Prior  to  the 
Act  of  1870,  however,  he  could  not  take  security  from  his  client  for 
future  costs,  and  any  mortgage  or  charge  given  to  secure  such  costs 
was  to  that  extent  invalid  {hi  re  Foster ;  Ex  parte  Walker,  1860,  2  De  G., 
F.  &  J.  105 ;  45  E.  R.  562). 

2.  By  the  Solicitors  Act,  1870,  as  altered  by  sec.  9  of  the  Solicitors 
Remuneration  Act,  1881,  a  solicitor  may,  in  the  case  of  contentious  busi- 
ness, take  security  from  his  client  for  his  future  fees,  charges,  and 
disbursements,  to  be  ascertained  by  taxation  or  otherwise. 

3.  In  the  case  of  conveyancing  and  non-contentious  business,  a  solicitor 
may  accept  security  from  his  client  for  the  amount  to  become  due  to 
the  solicitor  for  business  to  be  transacted  by  him,  with  interest ;  but 
interest  will  not  commence  till  the  amount  due  is  ascertained,  either  by 
agreement  or  taxation  (Solicitors'  Remuneration  Act,  1881,  s.  5  ;  General 
Order,  r.  7). 

But  the  Court  views  with  suspicion  all  securities  given  by  a  client  . 
to  his  solicitor,  and  will  scrutinise  the  transaction  with  great  strictness, 
especially  if  the  client  had  no  independent  professional  advice  {Lawless 
v.  Mansfield,  1841,  1  Dr.  &  War.  557;  Fisher  on  Mortgages,  p.  212,  5th 
ed. ;  Macleod  v.  Jones,  1883,  24  Ch.  D.  289 ;  Morgan  v.  Higgins,  1859, 
1  Gif.  270 ;  Cheese  v.  Keen,  [1908]  1  Ch.  245). 

On  proof  of  any  undue  influence,  fraud,  pressure,  or  unfair  or  improper 
dealing  of  any  kind  on  the  part  of  the  solicitor  {Gourley  v.  Wood  Daly, 
1846,  3  Jo.  &  Lat.  678;  Watson  v.  Rodivell,  1879,  11  Ch.  D.  150;  Eyre 
V.  Hughes,  1876,  2  Ch.  D.  148),  or  even  of  one  considerable  error  {Coleman 
V.  Mellersh,  1850,  2  Mac.  &  G.  309),  the  security  will  be  re-opened, 
though  (as  in  every  other  case)  the  right  to  relief  may  be  lost  by  affirm- 
ance, or  by  mere  delay  and  acquiescence  {Blagrave  v.  Bouth,  1856,  8 
De  G.,  M.  &  G.  621 ;  44  E.  R.  529 ;  Lyddon  v.  Moss,  1859,  4  De  G.  &  J. 
104;  and  see  Cheese  v.  Keen,  where  it  was  attempted  to  set  up  the 
Statute  of  Limitations). 

Any  unusual  stipulation,  e.g.  a  clause  postponing  the  right  to  redeem 
for  an  unreasonable  time,  as,  for  instance,  twenty  years  {Cowdry  v.  Day, 
1859,  1  Gif.  316),  or  an  unqualified  power  of  sale,  even  in  a  second  mort- 
gage {Coclcburn  v.  Edivards,  1881, 18  Ch.  D.  449  ;  Craddock  v.  Rogers,  1885, 
53  L.  J.  Ch.  968),  will  be  treated  as  invalid ;  and  the  ordinary  rule,  that 
the  Court  will  not,  on  motion,  restrain  a  sale  of  the  mortgaged  property, 
except  on  terms  of  the  mortgagor  paying  into  Court  what  the  mortgagee 
swears  to  be  due,  does  not  apply  where  the  parties  are  client  and 
solicitor,  but  the  Court  will  look  to  all  the  circumstances  of  the  case,  and 
decide  accordingly  {Macleod  v.  Jones,  1883,  24  Ch.  D.  289). 


SOLICITOE  477 

Where,  however,  the  client  has  examined  the  bills  and  settled  an 
account  with  the  solicitor,  and  there  has  been  no  fraud,  pressure,  or 
unfair  dealing,  the  solicitor  will  not  be  restrained  from  enforcing  his 
security  {Jones  v,  Roberts,  1846,  9  Beav.  419  ;  Judd  v.  Ollarcl,  1859,  5  Jur. 
K  S.  755 ;  Cheslyn  v.  Dalhy,  1836, 2  Y.  &  C.  170) ;  and  if  the  client  relies 
on  fraud  or  error  as  a  ground  for  re-opening  the  transaction,  he  must 
allege  and  prove  the  special  items  on  which  he  relies ;  a  mere  general 
charge  will  not  warrant  the  opening  of  the  account  {Blagrave  v.  Routh, 
1856,  8  De  G.,  M.  &  G.  620 ;  44  E.  R.  529 ;  not  following  on  this  point, 
Lawless  v.  Mansfield,  1841,  1  Dr.  &  War.  557). 

There  is  no  objection,  on  the  ground  of  champerty,  to  an  assignment 
to  the  solicitor,  by  way  of  security  only,  of  the  subject-matter  of  a  suit 
{Anderson  v.  Radcliffe,  1858,  El.  B.  &  E.  806,  819  ;  Simpson  v.  Lamb,  1857, 
7  El.  &  Bl.  84). 

The  security,  if  valid,  may  be  enforced  by  foreclosure;  and  the 
delivery  of  a  bill,  under  the  Solicitors  Act,  1843,  s.  37,  is  not  a  condition 
precedent  to  commencing  proceedings  {Thomas  v.  Cross,  1864,  10  Jur. 
JST.  S.  1163;  Jeffreys  v.  Evans,  1845,  14  Mee.  &  W.  210);  nor  will  the 
mere  fact  that  the  common  order  for  taxation  has  been  made  be  a  bar 
to  the  action,  at  any  rate  where  the  order  has  never  been  served  or 
proceeded  with  {Thomas  v.  Cross). 

Account  by  Solicitor. — Where  the  relation  of  solicitor  and  client  exists 
or  has  existed  the  client  may  issue  a  summons  for  delivery  of  a  cash 
account,  payment  of  moneys  or  delivery  of  securities,  and  the  Court  may 
make  an  order  accordingly  ;  and  if  the  solicitor  alleges  a  claim  for  costs 
the  Court  may  make  any  necessary  order  for  payment  or  security 
thereof  with  due  protection  for  the  solicitor's  lieu,  if  any  (Order 
52,  r.  25). 

Payment  of  Costs  by  Third  Parties. — In  certain  cases,  though  the 
client  who  actually  employed  the  solicitor  generally  remains  liable  to 
him  in  the  first  instance,  yet  the  costs  are  ultimately  paid  either  by  some 
other  person  or  out  of  some  estate  or  fund.  For  the  cases  in  which 
such  persons  are  entitled  to  an  order  for  taxation  of  the  costs,  see 
post,  p.  490. 

(i.)  Lessor's  Solicitor  paid  by  Lessee. — On  the  granting  of  a  lease,  the 
lessor's  solicitor  prepares  the  lease,  on  the  instructions  of  the  lessor ; 
but  the  costs,  in  the  absence  of  any  agreement  to  the  contrary,  are  borne 
by  the  lessee  {Grissell  v.  Robinson,  1836,  3  Bing,  N.  C.  10  ;  43  R.  E.  574 ; 
Jn  re  Gray,  [1900]  1  Ch.  239  ;  Helps  v.  Clayton,  1864, 17  C.  B.  N.  S.  p.  569, 
2Jer  Willes,  J. ;  Burke  v.  Smythe,  1846,  9  Ir.  Eq.  R.  p.  137,  per  Lord  St. 
Leonards) ;  and  payment  of  them  should  be  required  before  the  lease 
is  handed  over  {In  re  Hilleary  &  Taylor,  1886,  W.  N.  73).  On  taking 
a  lease  from  two  or  more  persons,  however,  who  employ  different  solicitors, 
the  lessee  is  only  liable  for  one  set  of  costs  {In  re  Fletcher  &  Dyson, 
[1903]  2  Ch.  688). 

The  lessor  who  instructed  the  solicitor  of  course  remains  liable  to 
pay  his  charges  {Baker  v.  Meryweather,  1849,  2  Car.  &  Kir.  737),  but  he 
may  recover  the  amount  over  from  the  lessee  {Grissell  v.  Robinson). 
Counsel's  and  surveyor's  fees  are  not  allowed  as  part  of  the  costs  of 
a  lease  {Locks. Furze,  1865,  19  C.  B.  N.  S.  96);  nor  is  the  lessee  it  seems 
bound  to  pay  for  the  counterpart  {In  re  Negus,  [1895]  1  Ch.  p.  81,  ^;cr 
Chitty,  J.). 


478  SOLICITOK 

The  lessor's  solicitor  has  in  general  no  claim  for  his  costs  against  the 
lessee,  there  being  no  privity  between  them ;  but  slight  evidence  that 
the  solicitor  was  employed  by  the  lessee  will  suffice  to  make  the  latter 
liable  (Smith  v.  Clegg,  1858,  27  L.  J.  Ex.  300 ;  Webb  v.  Ehodes,  1837, 
3  Bing.  K  C.  732 ;  43  K.  R.  790). 

(ii.)  Mortgagee's  Solicitor  paid  by  Mortgagor.  —  Where  money  is 
advanced  on  mortgage,  the  security  is  of  course  prepared  by  the  mort- 
gagee's solicitor ;  but  the  costs  are  borne  by  the  mortgagor,  and  should 
be  deducted  from  the  money  advanced  {In  re  Hilleary  &  Taylor,  1886, 
W.  N.  73).  The  solicitor  himself  can  make  no  claim  for  his  charges 
against  the  mortgagor,  even  though  the  mortgage  goes  off  through  the 
mortgagor's  default ;  he  can  only  look  to  his  employer,  the  mortgagee, 
leaving  the  latter  to  recover  over  from  the  mortgagor  (  Wilkinson  v.  Grant, 
1856,  18  C.  B.  319  ;  and  see  Pratt  v.  Vizard,  1833,  5  Barn.  &  Adol.  808 ; 

39  E.  R.  660 ;  Rigley  v.  DaijUn,  1828,  2  Y.  &  J.  83 ;  31  R.  R.  554). 

As  in  the  case  of  a  lease,  however,  slight  evidence  of  employment 
will  be  sufficient  to  make  the  mortgagor  liable  to  the  solicitor  {Smith  v. 
Clegg,  1858,  27  L.  J.  Ex.  300). 

(iii.)  Marriage  Settlements. — In  the  case  of  marriage  settlements,  it  is 
customary  for  the  wife's  solicitor  to  prepare  the  settlement,  even  though 
the  property  settled  belongs  exclusively  to  the  husband,  but  the  costs  are 
borne  by  the  husband  {Kelps  v.  Clayton,  1864,  17  C.  B.  N.  S.  553).  The 
wife,  having  given  the  retainer,  is  liable  to  the  solicitor  in  the  first 
instance,  but  she  has  a  right  of  indemnity  over  against  the  husband 
(ibid.). 

(iv.)  Solicitor  employed  by  Triistees. — A  solicitor  employed  by  a  trustee 
in  relation  to  the  trust  is  often  said  to  be  "  solicitor  to  the  trust,"  but  this 
is  an  inaccurate  mode  of  describing  his  position.  His  retainer  is  by  the 
trustee  personally,  and  the  trustee  is  the  only  person  to  whom  he  can 
look  for  payment.  On  the  other  hand,  the  trustee  has  a  right  to  be 
indemnified  out  of  the  trust  estate  against  all  expenses  properly  incurred 
by  him  on  behalf  of  the  trust,  including  costs  incurred  in  employing 
a  solicitor ;  and  of  this  right  of  indemnity,  which  is  a  first  charge  on  the 
estate,  the  solicitor  gets  the  benefit.  But  the  solicitor  has  himself  no 
direct  charge  on  the  estate,  and  any  payment  he  gets  out  of  the  estate  is 
only  through  the  right  of  indemnity  of  his  employer,  the  trustee  {Staniar 
V.  Hvans,  1886,  34  Ch.  D.  470,  476,  per  North,  J. ;  Stott  v.  Milne,  1884, 
25  Ch.  D.  710 ;  In  re  Beddoe,  Downes  v.  Cottam,  [1893]  1  Ch.  547).  There 
being  this  right  of  indemnity,  however,  the  trustee  is  entitled  to  pay  the 
costs  out  of  the  trust  estate  instead  of  out  of  his  own  pocket ;  and  any 
such  payment  will  be  valid,  so  far  as  the  solicitor  is  concerned,  unless  he 
received  the  money  with  notice  of  such  a  breach  of  trust  on  the  part  of 
the  trustee  as  would  preclude  the  latter  from  resorting  to  the  trust 
estate  for  payment  of  costs  {In  re  Blundell,  1888,  40  Ch.  D.  370 ;  S.  C. 
44  Ch.  D.  1 ;  Barnes  v.  Addy,  1874,  L.  R.  9  Ch.  244;  In  re  Sadd,  1865, 
34  Beav.  650  ;  55  E.  R.  786).  Conversely,  the  solicitor  being  the  agent 
of  the  trustee,  is  as  a  general  rule  accountable  only  to  his  employer,  the 
trustee,  and  not  to  the  cestuis  que  triLstent  {Maw  v.  Pearson,  1860,  28 
Beav.  196  ;  In  re  Spencer,  1882,  51  L.  J.  Ch.  271 ;  In  re  Jackson,  1889, 

40  Ch.  D.  495),  though  the  latter  may  in  some  cases  obtain  an  order  for 
taxation  of  the  solicitor's  bill  (see  post,  p.  491).  Trustees  are  at  liberty 
to  select  their  own  solicitor  {In  re  Duke  of  Cleveland's  Settled  Estates, 
[1902]  2  Ch.  350),  and  even  a  direction  in  a  will  that  a  particular  person 
shall  be  solicitor  to  the  trust  imposes  no  obligation  on  them  to  employ 


SOLICITOK  479 

him  {Foster  V.  Elsley,  1881,  19  Ch.  D.  518).  The  above  principles  apply- 
equally  to  the  case  of  an  executor  or  administrator  employing  a  solicitor 
in  the  administration  of  the  estate  of  a  deceased  person  {In  re  Watson, 
1886,  18  Q.  B.  D.  116;  19  ibid.  235);  and  as  to  the  rights  of  a  solicitor 
employed  by  a  trustee  in  bankruptcy,  see  Ex  'parte  Harper ;  In  re  Pooley, 
1882,  20  Ch.  D.  685;  In  re  Wayman ;  Ex  parte  Official  Receiver,  1889, 
24  Q.  B.  D.  68 ;  Bankruptcy  Rules,  1886,  r.  125). 

Solicitor  as  Trustee. — If  the  solicitor  is  himself  a  trustee,  he  is  not 
entitled  to  charge  profit  costs  for  professional  services  rendered  in  con- 
nection with  the  trust,  but  is  confined  strictly,  like  any  other  trustee, 
to  out-of-pocket  expenses  {Moore  v.  Frowd,1837,  3  Myl.  &  Cr.  45 ;  45  R  R. 
205 ;  I^ew  v.  Jones,  1833,  1  Mac.  &  G.  668^1. ;  Broughton  v.  Brotu/hton, 
1854,  5  De  G.  M.  &  G.  160;  In  re  Doody,  [1893]  1  Ch.  p.  134;  In  re 
Corsellis,  Lawton  v.  Elwes,  1887,  34  Ch.  I).  675 ;  In  re  Barber,  Burgess 
V.  Vinnicome,  1886,  34  Ch.  D.  77);  and  the  rule  applies  equally  where 
he  is  a  member  of  a  firm  by  whom  the  business  is  done  {Collins  v.  Carey, 
1839,  2  Beav.  128;  48  E.  K.  1128;  50  R.  R.  124;  Christophers  \.  White, 
1847,  10  Beav.  523;  50  E.  R.  683;  76  R.  R.  191;  Lyon  v.  Baker,  1852, 
5  De  G.  &  Sm.  622 ;  64  E.  R.  1271 ;  In  re  Corsellis,  Lawton  v.  Ehves,  ubi 
supra).  A  solicitor-trustee  may,  however,  employ  his  partner,  and  pay 
him  his  full  professional  charges  if  it  has  been  expressly  agreed  between 
them  that  the  solicitor-trustee  shall  not  share  in  the  profits  {Clack  v. 
Carlon,  1861, 30  L.  J.  Ch.  639 ;  In  re  Doody) ;  and  a  solicitor-trustee  made 
party  to  an  action,  though  he  can  receive  nothing  himself,  will  be  allowed 
that  portion  of  the  bill  which  his  town  agent  is  entitled  to  receive 
{Burge  v.  Brutton,  1843,  2  Hare,  373 ;  67  E.  R.  153 ;  62  R.  R.  138),  but 
he  cannot  derive  any  benefit  from  any  arrangement  he  may  have  made 
with  other  solicitors  to  act  as  his  agents  in  the  trust  business  on  usual 
agency  terms  {In  re  Taylor,  1854,  18  Beav.  165 ;  52  E.  R.  65),  or  share 
profits  with  him  {In  re  Thorpe,  Vipont  v.  Radcliffe,  [1891]  2  Ch.  360). 

A  solicitor-trustee  may,  however,  charge  profit  costs  in  the  following 
cases : — 

1.  Where  he  appears  for  himself  and  his  co- trustee  in  proceedings 
in  Court,  except  in  so  far  as  the  costs  have  been  increased  by  his  being 
a  party.  This  rule,  though  anomalous,  is  well  settled,  and  is  always 
followed  by  the  Taxing-Masters  in  practice ;  see  Cradock  v.  Piper,  1850, 
1  Mac.  &  G.  664 ;  Lincoln  v.  Windsor,  1858,  9  Hare,  151 ;  68  E.  R.  456 ; 
In  re  Corsellis,  Lawton  v.  Elwes,  1887,  34  Ch.  D.  675 ;  In  re  Barber, 
Burgess  v.  Vinnicome,  1886,  34  Ch.  D.  77 ;  In  re  Doody,  [1893]  1  Ch.  129. 
It  applies  to  friendly  as  well  as  hostile  proceedings,  e.g.  an  application 
in  chambers  for  maintenance  {In  re  Corsellis),  but  not  to  the  costs  of 
business  done  in  the  course  of  administration  out  of  Court  {Lincoln  v. 
Windsor) ;  and  where  a  solicitor  who  is  sole  trustee  or  executor,  is  plaintiff 
or  defendant,  and  acts  for  himself,  he  is  not  entitled  to  profit  costs  {In 
re  Barber,  1886,  34  Ch.  D.  p.  81,  per  Chitty,  J.).  On  a  solicitor-trustee 
becoming  entitled  to  costs,  the  Court  directs  taxation  in  the  usual 
manner,  and  the  objection  to  the  allowance  of  profit  costs  may  be  taken 
before  the  Taxing-Master  {Cradock  v.  Piper ;  York  v.  Brown,  1844, 1  Coll. 
260 ;  63  E.  R  410 ;  66  R  R.  62 ;  Stone  v.  Lickorish,  [1891]  2  Ch.  363). 

2.  He  may  also  make  the  usual  professional  charges  where  the 
instrument  creating  the  trust  expressly  empowers  him  so  to  do,  and 
a  provision  to  this  effect  is  now  very  commonly  contained  in  deeds  and 
wUls,  though  it  ought  not  to  be  inserted  by  a  solicitor  in  his  own  favour. 


480  SOLICITOE 

except  on  express  instructions  {In  re  Chap2)le,  Newton  v.  Chapman,  1884, 
27  Ch.  D.  584 ;  In  re  Fish,  Bennett  v.  Bennett,  [1893]  2  Ch.  p.  425,  ijer 
Kay,  L.  J.).  The  ordinary  trustees'  indemnity  and  reimbursement  clause, 
however,  will  not  warrant  the  charging  of  profit  costs  {Moore  v.  Frowd, 
1837,  3  Myl.  &  Cr.  45) ;  and  where  the  authority  is  to  make  the  usual 
"professional"  charges,  the  solicitor  will  not  be  allowed  to  charge  for 
business  which  might  have  been  transacted  by  a  layman,  e.g.  attending 
at  the  bank  to  receive  dividends  {Harbin  v.  Darby  (No.  1),  1860,  28  Beav. 
325;  54  E.  E.  391 ;  In  re  Chappie,  Newton  v.  Chapman,  1884,  27  Ch.  I). 
584;  and  see  Clarkson  v.  Robinson,  [1900]  2  Ch.  722);  secus,  where  the 
solicitor  was  authorised  to  make  the  usual  professional,  "  or  other  proper 
and  reasonable  charges,"  and  whether  the  business  done  was  usually 
within  the  business  of  a  solicitor  or  not  {In  re  Ames,  Ames  v.  Taylor, 
1883,  25  Ch.  D.  72 ;  In  re  Fish,  Bennett  v.  Bennett,  [1893]  2  Ch.  413). 
But  a  power  to  make  "  all  professional  and  other  charges  for  his  time 
and  trouble  "  will  not  authorise  charges  for  non-professional  work  {Re 
Chalinder,  [1907]  1  Ch.  58).  A  power  in  a  will  for  a  solicitor-trustee 
to  make  professional  charges  is  a  beneficial  gift  within  sec.  15  of  the 
Wills  Act,  and  is  consequently  avoided  by  the  solicitor  attesting  the  will 
as  a  witness  {In  re  Pooley,  1888,  40  Ch.  D.  1 ;  In  re  Barber,  Burgess  v. 
Vinnicome,  1886,  31  Ch.  1).  665);  nor  can  such  a  power  be  made  avail- 
able if  the  estate  prove  insolvent  (/w  re  Barber;  In  re  White,  [1898] 
1  Ch.  297;  2  Ch,  217);  and  semble,  it  renders  the  solicitor  liable  to 
legacy  duty  {In  re  Thorley,  Thorley  v.  Massam,  [1891]  2  Ch.  613 ;  In  re 
White,  [1898]  2  Ch.  p.  217). 

Solicitor  as  Moi^tgagee. — The  right  of  a  solicitor  who  is  also  a  mort- 
gagee to  charge  profit  costs,  which  was  formerly  the  subject  of  much 
controversy,  is  now  recognised  by  the  Mortgagees'  Legal  Costs  Act,  1895 
(58  &  59  Vict.  c.  25),  which  provides — 

Sec.  2.  That  any  solicitor  to  whom,  either  alone  or  jointly  with  any 
other  person,  a  mortgage  is  made,  or  the  firm  of  which  such  solicitor 
is  a  member,  may  receive,  for  all  business  transacted  by  such  solicitor 
or  firm  in  negotiating  the  loan,  deducing  and  investigating  the  title  to  the 
property,  and  preparing  and  completing  the  mortgage,  all  such  usual 
professional  charges  and  remuneration  as  he  or  they  would  have  been 
entitled  to  receive  if  the  mortgage  had  been  made  to  a  person  not  a 
solicitor,  and  such  person  had  retained  the  solicitor  or  firm  to  transact 
such  business ;  and  such  charges  and  remuneration  shall  accordingly  be 
recoverable  from  the  mortgagor.  But  this  section  applies  only  to  mort- 
gages made  after  the  commencement  of  the  Act.  The  solicitor  is  entitled 
to  charge  the  scale  fee  for  "negotiating"  {In  re  iVorm,  [1902]  1  Ch. 
741). 

By  sec.  3  of  the  same  Act,  any  solicitor  to  or  in  whom,  either  alone 
or  jointly  with  any  other  person,  any  mortgage  is  made  or  is  vested  by 
transfer  or  transmission,  or  the  firm  of  which  such  solicitor  is  a  member, 
may  receive  and  recover  from  the  person  on  whose  behalf  the  same  is 
done,  or  may  charge  against  the  security,  for  all  business  transacted 
by  such  solicitor  or  firm  subsequent  and  in  relation  to  such  mortgage, 
or  to  the  security  thereby  created,  or  the  property  therein  comprised, 
all  such  usual  professional  charges  and  remuneration  as  he  or  they 
would  have  been  entitled  to  receive  if  the  mortgage  had  been  made  to 
and  had  remained  vested  in  a  person  not  a  solicitor,  and  such  person 
had  retained  the  solicitor  or  firm  to  transact  such  business ;  and  no  such 


SOLICITOR  481 

mortgage  may  be  redeemed  except  upon  payment  of  such  charges  and 
remuneration.  This  section  applies  to  mortgages  made,  and  business 
transacted,  and  acts  done  either  hefore,  or  after  the  commencement  of 
the  Act  {Day  v.  Kelland,  [1900]  2  Ch.  745). 

XII.  Eeference  to  Taxation. 

When  the  bill  has  been  properly  made  out,  it  should  be  delivered 
to  the  client.  This  is,  of  course,  in  most  cases  a  voluntary  act  on 
the  part  of  the  solicitor,  but  delivery  of  a  bill  may,  whenever  necessary, 
be  compelled  by  order  of  the  Court  (see  Bill  of  Costs,  Vol.  II. 
p.  185). 

(i.)  Taxation  tefore  Payment  and  ivithin  Twelve  Months  after  Delivery 
of  the  Bill. — By  sec.  37  of  the  Solicitors  Act,  1843,  following  an  earlier 
Act  of  the  reign  of  George  ii.,  it  is  provided  that  upon  the  application 
of  the  "  party  chargeable,"  within  one  month  (which  means  a  calendar 
month,  s.  48;  Byalh  v.  7^.,  1848,  12  Jur.  458;  Freeman  v.  Read,  1863, 
4  B.  &  S.  174)  after  delivery  of  the  bill,  the  Court  shall  order  the  bill, 
and  the  demand  of  the  solicitor,  his  executor,  administrator,  or  assignee 
thereupon,  to  be  taxed  and  settled  without  any  money  being  brought 
into  Court,  and  shall  restrain  the  solicitor,  his  executor,  etc.,  from  com- 
mencing any  action  touching  such  demand  pending  the  reference.  If 
no  such  application  is  made  within  the  month,  then  the  reference  may 
be  made  within  twelve  months,  either  upon  the  application  of  the  solicitor, 
his  executor,  etc.,  or  of  the  "  party  chargeable  "  by  the  bill,  with  such 
directions  and  subject  to  such  conditions  as  the  Court  thinks  proper ; 
and  the  Court  may  restrain  the  solicitor,  his  executor,  etc.,  from  com- 
mencing any  action,  pending  the  reference,  upon  such  terms  as  shall 
be  thought  proper. 

The  branch  of  the  Court  to  which  the  application  for  taxation  ia 
made  depends  upon  where  the  business  charged  for  was  done.  If  it  was 
transacted  in  the  Chancery  Division,  or  in  bankruptcy  (but  see  In  re 
Marsh,  1885, 15  Q.  B.  D.  340)  or  lunacy,  or  altogether  out  of  Court,  the  ap- 
plication is  generally  made  in  the  Chancery  Division  (s.  37 ;  In  re  Pollard^ 
1888,  20  Q.  B.  D.  656).  If  it  was  transacted  in  the  King's  Bench  Divi- 
sion, or  in  any  other  Court,  the  application  is  generally  made  in  the  King's 
Bench  Division  (s.  37 ;  In  re  Lewis,  1876,  1  Q.  B.  D.  724,  726 ;  In  re 
Jones,  [1896]  1  Ch.  p.  226),  though  any  judge  of  the  High  Court  has 
jurisdiction  to  order  delivery  and  taxation  of  a  bill,  even  though  it  relate 
to  non-contentious  business  (Order  65,  r.  26a).  The  application  must 
be  made  in  the  matter  of  the  solicitor  (s.  43).  A  registrar  of  the  district 
registry  of  Manchester  or  Liverpool  has  no  jurisdiction  to  make  the 
common  order  for  taxation  {In  re  Porrett,  [1891]  2  Ch.  433).  Costs 
incurred  by  solicitors  acting  as  parliamentary  agents  are  taxed  under 
the  House  of  Commons  Costs  Taxation  Act,  1847,  and  not  by  a  Taxing- 
Master  {In  re  Baker,  [1903]  1  K.  B.  189). 

There  is  no  jurisdiction  under  the  statute  to  refer  part  of  a  bill  to 
taxation,  though  an  order  for  this  purpose  may  be  made  under  the 
general  jurisdiction  of  the  Court  {Storer  v.  Johnson,  1890,  15  App.  Cas. 
203  ;  In  re  Park,  Cole  v.  Park,  1889,  41  Ch.  D.  326),  and  it  frequently 
happens  in  the  Chancery  Division  that  bills  which  cannot  be  taxed 
under  the  statute  are  referred  to  a  Taxing-Master  for  modification  under 
the  general  jurisdiction  of  the  Court  {Lumsden  v.  Shipcote  Land  Co.,. 
[1906]  2  K.  B.  p.  438).  The  summary  jurisdiction  given  by  the  statute 
VOL.  xin.  31 

/ 


482  SOLICITOE 

does  not  preclude  the  client  from  bringing  an  action  against  the  solicitor 
for  an  account  (OBrien  v.  Lewis,  1863,  9  Jur.  N.  S.  321). 

The  next  friend  of  an  infant  may  apply  for  taxation,  as  being  a 
"party  chargeable"  by  the  bill  {In  re  Fluker,  1855,  20  Beav.  143; 
52  E.  E.  557).  So  may  the  executors  {Jefferson  v.  Warrington,  1840, 
7  Mee.  &  W.  137 ;  56  E.  E.  667).  or  the  trustee  in  bankruptcy  {Clarkson 
V.  Parker,  1838,  4  Mee.  &  W.  532 ;  51  E.  E.  712 ;  In  re  West,  King  & 
Adams,  [1892]  2  Q.  B.  p.  105)  of  the  person  originally  liable.  Where 
the  client  became  bankrupt  and  the  solicitor  omitted  to  prove  for  his 
costs  in  the  bankruptcy,  the  assignee,  applying  for  an  order  to  tax,  was 
put  under  an  undertaking  to  pay  the  whole  bill  {In  re  Elmslie  &  Co., 
1869,  L.  E.  9  Eq.  72 ;  In  re  Battams  &  Hutchinson,  [1897]  1  Ch.  699). 
If  several  persons  are  jointly  liable,  they  should  concur  in  the  application 
{In  re  Lewin,  1853,  16  Beav.  608;  51  E.  E.  915;  In  re  Ilderton,  1863, 
33  Beav.  201 ;  55  E.  E.  344),  unless  the  retainer  was  separate  {Ex  parte 
Ford,  1854,  23  L.  J.  Ch.  515 ;  In  re  Stephen,  1848,  2  Ph.  562 ;  In  re 
Salaman,  [1894]  2  Ch.  201).  The  assignee  in  bankruptcy  of  the  solicitor 
was  held  entitled  to  an  order  {In  re  Walton,  1858,  4  Kay  &  J.  78) ;  but 
whether  an  assignee  of  particular  costs  due  to  the  solicitor  is  entitled  to 
an  order  has  not  been  decided  {In  re  Ward,  1885,  28  Ch.  D.  719),  but  it 
would  seem  that  he  is  (see  Ligle  v.  M'Cutchan,  1884,  12  Q.  B.  D.  518 ; 
Penley  v.  Anstrtither,  1883, 52  L.  J.  Ch.  367 ;  In  re  Battams  &  Hutchinson, 
[1897]  1  Ch.  699).  A  solicitor  employed  by  guardians  of  the  poor  is 
entitled  to  an  order,  although  his  bill  may  have  been  already  taxed  by 
the  clerk  of  the  peace  {Guardians  of  the  Poor  of  Southampton  v.  Bell 
&  Taylor,  1888,  21  Q.  B.  D.  297). 

A  mere  voluntary  payment  of  a  solicitor's  bill  gives  no  right  to 
taxation  {In  re  Becke  &  Flower,  1844,  5  Beav.  406 ;  49  E.  E.  635 ;  59 
E.  E.  537),  nor  does  payment  by  one  party  to  an  action  of  the  costs 
of  the  solicitor  of  the  other  party  in  pursuance  of  an  agreement  {In 
re  Heritage;  Ex  parte  Docker,  1878,  3  Q.  B.  D.  726). 

An  unsigned  bill  may  be  referred  to  taxation  if  the  party  chargeable 
chooses  to  waive  the  irregularity  {In  re  Sutton,  1883,  11  Q.  B.  D.  377; 
Ex  parte  D'Aragon,  1887,  3  T.  L.  E.  815),  though  he  is  not  bound  to  do 
so  {Billing  v.  Coppock,  1847,  1  Ex.  Eep.  14). 

If  the  client  applies  for  taxation  within  the  month,  it  is  imperative 
on  the  Court  to  make  the  order  (s.  37 ;  Ex  parte  Jarman,  1877,  4  Ch.  D. 
p.  837) ;  but  on  an  application  after  the  month,  whether  by  client  or 
solicitor,  the  Court  has  a  discretion,  and  the  order  may  be  accompanied 
by  such  special  directions  as  may  appear  necessary  to  do  justice  between 
the  parties  {In  re  Gaitskell,  1845, 1  Ph.  576 ;  41  E.  E.  752 ;  Ex  parte  Ellis, 
1860,  2  L.  T.  233). 

In  the  absence  of  special  circumstances,  an  order  for  taxation  under 
sec.  37  of  the  Act  is  made  as  of  course,  and  without  any  affidavit.  In 
the  Chancery  Division  the  order  is  made  by  one  of  the  registrars  on 
a  petition  of  course  {In  re  Porrett,  [1891]  2  Ch.  p.  443),  in  the  King's 
Bench  Division  by  a  Master.  (Eor  forms  of  orders  to  tax,  see  E.  S.  C., 
App.  K,  Forms  41,  42 ;  Seton,  6th  ed.,  vol.  i.  p.  268  et  seq.)  The  order, 
if  obtained  by  the  client,  contains  a  submission  by  him  to  pay  what 
shall  appear  to  be  due  on  taxation,  and  this  submission  is  a  material 
part  of  the  order,  and  will  not  be  dispensed  with  {In  re  Battams  & 
Hutchinson,  [1897]  1  Ch.  699).  The  client,  by  obtaining  the  common 
order,  admits  the  retainer  for  at  least  some  part  of  the  work  done  {In  re 
Jones,  1887,  36  Ch.  D.  105;  In  re  Battams  &  Hutchinson).     If,  therefore, 


SOLICITOR  483 

he  wishes  to  dispute  the  retainer  as  to  the  whole  bill,  he  must  obtain  a 
special  order  giving  him  leave  to  question  the  retainer  {In  re  Frape,  [1894] 
2  Oh.  290,  and  see  below).  The  common  order  also  directs  the  solicitor 
to  give  credit  for  "  all  sums  of  money  by  him  received  of  or  on  account  of  " 
the  client  (see  In  re  Le  Brasseur  &  Oakley,  [1896]  2  Ch.  487),  and  restrains 
the  solicitor  from  commencing  an  action  for  the  costs  pending  the  refer- 
ence, and  usually  contains  also  a  direction  that  on  payment  of  what  is 
due  he  shall  deliver  up  all  the  client's  documents  in  his  possession  (s.  37 ; 
Seton,  6th  ed.,  vol.  i.  p.  268 ;  E.  S.  C,  App.  K,  Form  41),  though  it  is 
discretionary  with  the  Court  whether  to  add  this  last  provision  {Ux  parte 
Jarman,  1877,  4  Ch.  D.  835 ;  In  re  Ward,  [1896]  2  Ch.  31). 

The  Court  will,  however,  pending  taxation,  order  the  delivery  up  of 
papers  by  the  solicitor,  either  upon  payment  into  Court  of  the  amount 
claimed  (In  re  Jewitt  (No.  2),  1864,  34  Beav.  22 ;  55  E.  R.  539 ;  RepuUic 
of  Costa  Rica  v.  Erlanger,  1879,  W.  N.  7 ;  In  re  Galland,  1885,  31  Ch.  D. 
296;  In  re  Taylor,  Stileman  &  Underwood,  [1891]  1  Ch.  590),  or  in  case 
it  appears  from  the  solicitor's  own  account  that  a  balance  is  due  from 
him  {In  re  Bevan  &  Whitting,  1864, 33  Beav.  439 ;  55  E.  R.  438,  affirmed 
on  appeal  with  a  variation;  see  L.  R.  6  Eq.  p.  328;  31  Ch.  D.  p.  302; 
In  re  Hamhury,  Whittiruj  cfe  Nicholson,  1896,  75  L.  T.  449). 

If  circumstances  of  a  special  kind  exist  which  ought  to  be  brought 
to  the  notice  of  the  Court,  an  order  of  course  is  irregular,  and  a  special 
application  must  be  made  by  summons  at  chambers  (Order  55,  r.  2  (15)). 
Thus,  an  order  of  course  is  irregular  where  the  application  is  made  by 
some  only  of  several  parties  jointly  liable  {In  re  Perkhis,  1845,  8  Beav. 
241;  50  E.  R.  95;  In  re  Ilderton,  1863,  33  Beav.  201;  55  E.  R.  344; 
In  re  Kitton,  1866,  35  Beav.  369 ;  55  E.  R.  938),  or  where  the  application 
is  to  tax  some  only  of  several  bills  claimed  by  the  solicitor  {In  re  Yetts, 
1864,  33  Beav.  412;  55  E.  R.  427;  In  re  Ward,  1885,  28  Ch.  D.  719), 
or  to  tax  two  bills,  one  of  which  has  been  paid  {In  re  Hinton,  1852, 
15  Beav.  192 ;  51  E.  R.  510),  or  where  the  bill  forms  part  of  a  settled 
account  {In  re  Holland,  1854,  19  Beav.  314 ;  52  E.  R.  371),  or  where  the 
client  has  already  obtained  one  common  order,  and  allowed  it  to  lapse 
by  effluxion  of  time(/7i  re  Webster,  [1891]  2  Ch.  102 ;  In  re  Taylor,  Sons 
&  Tarbuck,  [1894]  1  Ch.  503 ;  but  see  In  re  Mackintosh,  [1903]  2  Ch. 
394,  as  to  extending  the  time),  or  where  the  bill  was  delivered  condition- 
ally, and  the  solicitor  claims  the  right  to  withdraw  it  {In  re  Thompson, 
1885,  30  Ch.  D.  441),  or  where  there  is  a  special  agreement  as  to  the 
•costs,  and  also  a  dispute  whether  the  relation  of  solicitor  and  client  exists 
between  the  parties  {In  re  Inderwick,  1883,  25  Ch.  D.  279 ;  and  see  In 
re  Fanshaive,  [1905]  W.  N.  64).  On  the  other  hand,  the  mere  fact  that 
there  is  a  special  agreement  {In  re  Inderwick,  supra),  or  that  some  of  the 
items  in  the  bill  are  included  in  an  existing  order  to  tax  costs  in  a  suit 
{In  re  Fluker,  1855,  20  Beav.  143 ;  52  E.  R.  557),  or  that  the  client 
■disputes  the  retainer  as  to  some  of  the  items  {In  re  Herbert,  1887, 34  Ch.  D. 
504;  In  re  Bracey,  1845,  8  Beav.  266  ;  50  E.  R.  105  ;  68  R.  R.  93),  or 
that  the  solicitor  who  obtains  the  order  knows  that  the  client  disputes 
the  retainer  as  to  the  whole  bill  {In  re  Jones,  1887,  36  Ch.  D.  105),  is  no 
objection  to  an  order  of  course.  If,  however,  the  client  desires  to  dispute 
the  retainer  as  to  the  whole  bill  {In  re  Jones ;  In  re  Frape  ;  In  re  W.  Pyne, 
1848,  5  C.  B.  407 ;  In  re  Thurgood,  1854,  19  Beav.  541 ;  52  E.  R.  461),  or 
raises  the  question  whether  some  of  the  items  are  not  statute-barred  {In 
re  Margetts,  [1896]  2  Ch.  263),  he  should  apply  specially ;  and  see,  further, 
as  to  disputing  the  retainer.  In  re  Wingjield  &  Blew,  [1904]  2  Ch.  p.  675, 


484  SOLICITOR 

and  as  to  the  effect  of  the  Statute  of  Limitations,  Budgett  v,  Budgett,  [1895] 

1  Ch.  202 ;  Curwen  v.  Milhurn,  1889,  42  Ch.  D.  424 ;  In  re  Hughes,  [1 899] 
W,  N.  125.  An  order  dismissing  a  summons  for  delivery  and  taxation  is 
a  final  order  {In  re  Herbert  Beeves  &  Co.,  [1902]  1  Ch.  29). 

The  pendency  of  an  action  by  the  solicitor  for  his  bill  does  not, 
generally  speaking,  prevent  the  client  from  obtaining  the  common  order, 
though,  in  that  case,  the  order  is  in  a  special  form  {In  re  Webster,  [1891] 

2  Ch.  p.  107 ;  Seton,  6th  ed.,  vol.  i.  p.  284) ;  but  after  final  judgment  the 
Court  has  no  jurisdiction  to  order  taxation  under  the  Act  {In  re  Barnard, 
1852,  2  De  G.,  M.  &  G.  359 ;  42  E.  R.  911 ;  16  Beav.  5,  In. ;  51  E.  R.  677  ; 
In  re  Gedye,  1852,  15  Beav.  254,  259;  51  E.  R.  535). 

If  material  facts  are  misrepresented  or  suppressed  in  the  petition 
upon  which  an  order  of  course  is  obtained  the  order  will  be  discharged 
for  irregularity  {In  re  Holland,  1854, 19  Beav.  314 ;  52  E.  R.  371 ;  In  re 
Webster,  [1891]  2  Ch.  102;  In  re  Taylor,  Sons  &  Tarbuck,  [1894]  1  Ch. 
503),  even  though  upon  the  -merits  there  may  be  a  case  for  directing 
taxation  {In  re  Yetts,  1864,  33  Beav.  412;  55  E.  R.  427).  In  a  later 
case,  however,  the  Court  of  Appeal  left  the  order  standing,  but  allowed 
the  clients  no  costs  of  the  proceedings  to  obtain  it  {In  re  Thompson,. 
1885, 30  Ch.  D.  441 ;  In  re  Webster,  supra ;  In  re  Taylor,  Sons  &  Tarbuck, 
supra). 

Conversely,  a  person  applying  for  a  special  order  to  tax  when  the 
common  order  would  have  sufficed,  pays  the  costs,  although  he  obtains 
the  order  {In  re  Bignold,  1845,  9  Beav.  269  ;  50  E.  R.  347 ;  73  R.  R.  352 ; 
In  re  Atkinson  &  Pilgrim,  1858,  26  Beav.  151 ;  53  E.  R.  854).  In 
doubtful  cases  the  client  should  apply  to  the  solicitor  to  consent  to  an 
order  of  course  {In  re  Taylor,  1852,  15  Beav.  145),  and  the  solicitor  will 
have  to  pay  the  costs  of  a  special  application  if  he  unreasonably  refuses 
{In  re  Adamson,  1854,  18  Beav.  460;  52  E.  R.  181;  In  re  Lett,  1862,  31 
Beav.  488 ;  54  E.  R.  1227). 

An  error  in  the  order  may  be  corrected  if  application  is  made  without 
delay  {In  re  Tibbits,  1881,  30  W.  R.  177).  Any  irregularity  in  the  order 
will  be  waived  by  the  solicitor  attending  before  the  Master  without  raising 
any  objection  {In  re  Wavell,  1856,  22  Beav.  634;  52  E.  R.  1253;  In  re 
Field,  1853, 16  Beav.  593;  51  E.  R.  909). 

If  the  order  is  obtained  by  the  solicitor  he  must  serve  it  on  the  client ;. 
but  if  the  client  obtains  the  order  he  is  not  bound  to  serve  the  solicitor 
{In  re  Bobertson,  1889, 42  Ch.  D.  p.  555,  per  Chitty,  J. ;  see,  however,  In  re 
Norvall,  1869,  W.  N.  255). 

(ii.)  Taxation  after  Payment. — Payment  of  any  bill  will  not  prevent 
the  Court  from  referring  it  for  taxation,  if  the  special  circumstances  of  the 
case  shall  so  require,  upon  such  terms  and  conditions  and  subject  to  such 
directions  as  the  Court  thinks  fit,  provided  the  application  for  the  refer- 
ence be  made  within  twelve  calendar  months  after  payment  (Sol.  Act,  1843, 
s.  41 ;  and  see  In  re  Wellborne,  [1901]  1  Ch.  312).  An  application  for 
taxation  under  this  section  is  made  by  summons  at  chambers  (Order  55, 
r.  2  (15)),  and  an  ex  parte  order  is  irregular  {In  re  Becke  &  Flower,  1844, 
5  Beav.  406 ;  49  E.  R.  635  ;  59  R.  R.  537 ;  In  re  Carew,  1844,  8  Beav.  150 ;. 
50  E.  R.  60).  (For  the  form  of  order,  see  Seton,  6th  ed.,  vol.  i.  p.  286.) 
The  application  should  be  made  as  soon  after  payment  as  possible,  and 
a  delay  of  several  months,  unless  satisfactorily  explained,  will  be  fatal 
{In  re  Bayley,  1854,  18  Beav.  415;  52  E.  R.  163;  In  re  Browne,  1852, 
1  De  G.,  M.  &  G.  322;  42  E.  R.  576 ;  In  re  Pugh,  1863,  32  Beav.  173 ;. 


SOLICITOE  485 

55  E.  R.  67) ;  if,  however,  no  bill  has  been  delivered  delay  is  immaterial, 
and  taxation  will  be  ordered  at  any  time  within  a  year  after  delivery 
{In  re  Fielder  &  Sumner,  1871,  40  L.  J.  Ch.  615).  The  section  includes 
all  bills,  whether  signed  or  not  {hi  re  Sutton  &  Elliott,  1883, 11  Q.  B.  D. 
377). 

Giving  security  for  the  amount  of  the  bill  is  tantamount  to  payment 
{In  re  Boyle,  1854,  5  De  G.,  M.  &  G.  540 ;  43  E.  R.  979) ;  but  if  the 
security  consists  of  a  promissory  note  or  bill  of  exchange,  the  twelve 
months  will,  in  the  absence  of  evidence  of  a  contrary  intention,  run  from 
the  time  when  the  note  or  bill  was  paid,  not  from  the  time  when  it  was 
given  {In  re  Harries,  1844,  13  Mee.  &  W.  3 ;  67  R.  R.  499 ;  Sayer  v. 
Wagstaff,  1844,  5  Beav.  415 ;  49  E.  R.  639 ;  59  R.  R.  540).  And  giving 
a  negotiable  security,  which  the  solicitor  receives  "  in  settlement "  of  his 
bill,  does  not  amount  to  payment  in  the  event  of  the  security  being  dis- 
honoured, unless  the  solicitor  proves  that  this  was  the  intention  of  the 
parties,  and  that  the  client  was  aware  of  the  effect  of  the  transaction  on 
his  right  to  tax  {In  re  Bomer  &  Haslam,  [1893]  2  Q.  B.  286). 

If  the  bill  is  paid  "under  protest"  the  only  effect  is  to  negative 
satisfaction  with  the  bill.  Such  a  payment  confers  no  right  on  the 
client  to  have  the  bill  taxed,  but  merely  reserves  the  right  if  it  exists. 
Consequently,  if  the  client  desires  taxation  he  must  still  prove  "  special 
circumstances"  {In  re  Cheesman,  [1891]  2  Ch.  p.  292,  per  Lindley,  L.J.). 

It  is  no  payment  if  the  solicitor  simply  retains  the  amount  of  his 
costs  out  of  money  of  the  client  in  his  hands  without  having  delivered 
a  proper  bill  {In  re  Baylis,  [1896]  2  Ch.  107;  In  re  Stogdon,  1887,  56 
L.  J.  Ch.  420;  In  re  West,  King  &  Adams,  [1892]  2  Q.  B.  102),  even 
though  there  may  have  been  a  settled  account,  or  what  as  between  other 
persons  would  have  amounted  to  a  settled  account  {In  re  Baylis,  supra). 
But  there  is  nothing  to  prevent  a  person  who  is  sui  juris  settling  an 
account  with  his  solicitor  if  he  likes,  after  a  proper  bill  has  been  delivered 
{ihid.,23er  Chitty,  J.,  p.  111).  In  some  cases,  it  is  true,  it  has  been  held 
that  the  delivery  of  a  bill  to  which  a  previous  retainer  of  the  costs  could 
be  referred,  made  the  transaction  amount  to  payment  of  the  bill  (see  Ex 
'parte  Hemming,  1856,  28  L.  T.  (0.  S.)  144 ;  In  re  Thompson,  [1894]  1  Q.  B. 
462 ;  Hitchcock  v.  Stretton,  [1892]  2  Ch.  343),  "  but  in  my  opinion  the 
Court  in  those  cases  thought  that  the  client  had  had  the  bill  and  exer- 
cised his  judgment  upon  it.  A  solicitor  who  retains  his  costs  without 
delivering  his  bill,  has  not  been  paid  his  bill "  {In  re  Baylis,  p.  117,  per 
Lindley,  L. J.).  Under  very  special  circumstances,  however,  the  retainer 
of  the  amount  of  the  bill  has  been  held  equivalent  to  payment  {Ex  parte 
Shccckell,  1852,  2  L>e  G.,  M.  &  G.  842;  42  E.  R.  1101;  and  see  Allen  v. 
Jarvis,  1869,  L.  R.  4  Ch.  616 ;  In  re  Webb,  Lambert  v.  Still,  [1894]  1  Ch. 
73 ;  Barioell  v.  Brooks,  1844,  8  Beav.  121 ;  50  E.  R.  48).  Again,  a  mere 
payment  on  account  {In  re  Woodard,  1869,  18  W.  R.  37),  or  payment  of 
a  gross  sum  without  delivery  of  a  proper  bill  {In  re  Blackmore,  1851,  13 
Beav.  154;  51  E.  R.  60;  In  re  Stephen,  1848,  2  Ph.  562;  41  E.  R.  1060; 
78  R.  R.  189),  does  not  amount  to  payment  within  the  section ;  and  see 
In  re  Ingle,  1855,  21  Beav.  275 ;  In  re  Callis,  1901, 49  W.  R.  316.  As  to 
the  effect  of  retainer  relied  on  in  taking  a  case  out  of  the  Statute  of 
Limitations,  see  In  re  Boswell,  [1906]  2  Ch.  359. 

As  to  what  will  constitute  "special  circumstances"  sufficient  to 
warrant  taxation,  notwithstanding  payment,  it  was  laid  down  in  a  suc- 
cession of  earlier  cases  that  the  client  must  show  either — (1)  Pressure, 
accompanied  by  some  overcharge ;  or  (2)  overcharge  so  gross  as  to  be 

/ 


486  SOLICITOR 

fraudulent.  It  is  now  settled,  however,  that  each  case  must  depend  on 
its  own  circumstances.  The  Court  cannot  lay  down  a  hard  and  fast  rule 
not  imposed  by  the  Act,  but  must  judge  in  each  case  whether  there  are 
special  circumstances  such  as  to  make  it  right  and  reasonable  that  the 
bill  should  be  taxed,  notwithstanding  payment  {per  Lindley,  L.J.,  in  In 
re  Cheesman,  [1891]  2  Ch.  289 ;  and  see  In  re  Boijcott,  1885,  29  Ch.  D. 
571 ;  In  re  Norman,  1886,  16  Q.  B.  D.  673  In  re  Hirst  &  Capes,  [1908] 
1  K.  B.  982);  and  if  there  are  "special  circumstances"  the  Court  of 
Appeal  will  be  slow  to  interfere  with  the  decision  of  the  Court  below 
that  they  are  sufficient  to  justify  taxation  {In  re  Cheesman,  s^ipn). 

Where  the  client  paid  expressly  subject  to  his  right  to  tax,  and  the 
solicitor  accepted  payment  on  these  terms  without  objection,  this  was 
held  a  sufficient  special  circumstance  to  warrant  taxation  {In  re  Williams; 
Ex  parte  Love,  1891,  65  L.  T.  68).  Practically,  however,  most  of  the 
cases  do  resolve  themselves  into  cases  either  of  "  pressure  accompanied 
by  some  overcharge "  or  "  fi-audulent  overcharge ; "  the  former  being 
cases  in  which  the  solicitor  has  taken  advantage  of  the  fact  of  his  being 
in  possession  of  documents  which  it  was  essential  to  the  client  to  obtain, 
or  has  otherwise  availed  himself  of  his  position  to  extort  payment,  which, 
under  other  circumstances,  would  have  been  refused  until  the  bill  had 
been  taxed ;  the  latter  being  cases  where  the  overcharges  are  so  excessive 
that  it  is  impossible  to  believe  they  were  made  honestly.  In  In  re 
Newman,  1867,  L.  R.  2  Ch.  p.  713,  Eolt,  L.J.,  laid  down  the  general  rule 
as  to  pressure  in  the  following  terms : — 

"  Where  the  completion  of  the  business  within  a  short  time  is  neces- 
sary, and  the  party  who  is  liable  to  pay  is  willing  to  pay  at  once  the 
whole  amount,  provided  the  right  to  taxation  be  reserved,  and  this  offer 
is  refused,  I  think  there  are  special  circumstances  which  justify  taxation, 
if  when  the  bill  of  costs  is  looked  at  it  appears  substantially  to  require 
taxation;"  and  see  In  re  Stephen,  1848,  2  Ph.  p.  569;  41  E.  R.  1060; 
78  E.  R.  189 ;  In  re  lacey  &  Son,  1883,  25  Ch.  D.  p.  309. 

Thus,  taxation  was  ordered  where  the  solicitor  refused  to  part  with 
a  deed  which  was  necessary  for  the  completion  of  a  purchase,  unless  his 
bill  was  first  paid  {In  re  Tryon,  1844,  7  Beav.  496;  49  E.  R.  1158 
64  R.  R.  132;  and  see  In  re  Pugh,  1863,  32  Beav.  173;  55  E.  R.  67 
1  De  a,  J.  &  S.  673;  In  re  lett,  1862,  31  Beav.  488;  54  E  R.  1227) 
where  the  mortgagee's  solicitor  threatened  that  unless  he  were  paid  the 
property  would  be  sold  {In  re  Mosely,  1867,  15  W.  R.  975 ;  and  see  In  re 
Sladden,  1847,  10  Beav.  488 ;  Ex  parte  Wilkinson,  1845,  2  Coll.  92) ;  and 
where  a  purchase  was  not  allowed  to  be  completed  unless  the  vendor's 
solicitor's  costs  were  paid  {In  re  Parker  &  George,  1884,  32  W.  R.  222 ; 
and  see  also  In  re  Elmslie,  1850,  12  Beav.  538;  50  E.  R.  1166;  In  re 
Foster,  1860,  2  De  G.,  F.  &  J.  105 ;  45  E.  R.  562). 

Where  payment  of  a  bill  delivered  at  the  last  moment  of  settling  a 
mortgage  or  transfer  is  insisted  on  without  any  opportunity  of  investiga- 
tion being  afforded,  this  will  clearly  be  a  "  special  circumstance  "  within 
the  Act  {In  re  Jones,  1845,  8  Beav.  479;  50  E.  R.  188;  68  R.  R.  160; 
In  re  Wells,  1845,  8  Beav.  416 ;  In  re  Bance,  1856,  22  Beav.  177 ; 
52  E.  R.  1076). 

If,  however,  the  bill  has  been  delivered  to  the  client  a  reasonable 
time  before  payment,  the  Court  will  not  order  taxation  {In  re  Wyche, 
1848,  11  Beav.  209 ;  50  E.  R.  796),  and  a  month  {In  re  Jones,  1845, 
8  Beav.  479 ;  50  E.  R.  188 ;  68  R.  R.  160),  twenty  days  {In  re  Harrison, 
1847,  10  Beav.  57 ;  50  E.  R.  503 ;  76  R.  R.  95),  a  fortnight  {In  re  Lacey 


SOLICITOR  487 

&  Son,  1883,  25  Ch.  D.  301),  nine  days  (In  re  Drew,  1847,  10  Beav.  368 ; 
50  E.  R.  624),  and  a  week  {In  re  Welchman,  1848, 11  Beav.  319 ;  50  E.  R. 
840),  have  been  held  sufficient  for  this  purpose.  In  some  cases  taxation 
has  even  been  refused,  though  payment  followed  immediately  on  delivery 
{In  re  Fyson,  1846, 9  Beav.  117 ;  50  E.  R.  287 ;  73  R.  R.  300 ;  In  re  Currie, 
1846,  9  Beav.  602 ;  50  E.  R.  476),  and  so  where  the  shortness  of  the 
interval  (four  days)  between  delivery  and  the  time  fixed  for  completion 
of  a  transfer  of  mortgage  was  due  solely  to  the  mortgagor's  desire  for 
speedy  completion  {In  re  Boycott,  1885,  29  Ch.  D.  571). 

Where,  however,  the  client  had  really  no  means  of  examining  the 
bill,  taxation  was  ordered  {In  re  Abbott,  1854,  18  Beav.  393 ;  52  E.  R. 
155);  and  even  if  the  bills  have  been  delivered  in  sufficient  time  to 
enable  the  client  to  obtain  advice  on  them,  and  he  has  in  fact  done  so, 
and  settled  with  his  solicitor,  still  even  this  is  not  always  sufficient,  and 
if  a  proper  case  can  be  made  for  it  the  Court  does  not  hesitate  to  direct 
taxation  {Nokes  v.  Warton,  1842,  5  Beav.  448;  49  E.  R.  651;  59  R.  R. 
554). 

The  mere  fact  that  a  solicitor  refuses  to  hand  over  deeds,  lawfully  in 
his  possession,  until  his  bill  has  been  paid  {In  re  Munns  &  Longden,  1884, 
50  L.  T.  356),  or  that  he  has  omitted  to  tell  his  clients  (trustees)  that  if 
the  costs  should  be  subsequently  taxed  in  an  administration  action  and 
the  bills  reduced,  they  would  not  be  allowed  the  full  amount  paid  {In 
re  Layton,  Steele  &  Co.,  1890,  38  W.  R.  652 ;  W.  K  112),  is  not  a  sufficient 
"  special  circumstance  "  to  warrant  taxation. 

The  right  of  a  transferee  of  a  mortgage  to  tax  the  bill  of  the  mort- 
gagee's solicitor  will  be  lost  if  the  transfer  is  made  a  security  for  a 
certain  sum,  including  principal,  interest,  and  costs,  which  is  recited  to 
be  due  on  the  mortgage  {In  re  Gold,  1871, 24  L.  T.  9 ;  In  re  Forsyth,  1864, 
34  Beav.  140 ;  55  E.  R.  587 ;  2  De  G.,  J.  &  S.  509 ;  46  E.  R.  472). 

Whatever  other  "special  circumstances"  may  be  relied  on  as  a 
ground  for  taxation  there  must  always  be  proof  that  there  are  over- 
charges in  the  bill  {j^er  Turner,  L.J.,  in  Ex  imrte  Barton,  1853,  4  De  G., 
M.  &  G.  p.  113  ;  43  E.  R.  448 ;  and  see  In  re  Lacey  &  Son,  1883,  25  Ch.  D. 
301 ;  In  re  Boycott,  1885,  29  Ch.  D.  571),  and  even  if  not  absolutely 
essential  it  is  at  any  rate  very  desirable  that  the  specific  items  objected 
to  should  be  pointed  out  {In  re  Bm/cott,  supra). 

If  overcharge  is  the  special  circumstance  relied  on,  the  overcharges 
must,  according  to  the  older  cases,  be  so  serious  as  to  amount  to  fraud ; 
but  since  the  decision  of  the  Court  of  Appeal  in  In  re  Norvian,  1886, 
16  Q.  B.  D.  673,  it  may  be  assumed  that  items  unreasonably  large, 
charges  requiring  explanation,  or  gross  blunders,  will  be  held  sufficient 
(and  see  In  re  Rohinson,  1867,  L.  R.  3  Ex.  4).  The  onus  of  showing 
overcharge  is  of  course  upon  the  client  {In  re  Towle,  1860,  30  Beav.  170 ; 
54  E.  R.  853),  and  specific  items  of  overcharge  should  be  alleged  and 
proved  {In  re  Thompson,  1845,  8  Beav.  p.  239 ;  50  E.  R.  93 ;  68  R.  R. 
80 ;  Dunt  v.  Dunt,  1846,  9  Beav.  146 ;  50  E.  R.  299 ;  In  re  Browne, 
1852,  1  De  G.,  M.  &  G.  322,  333 ;  42  E.  R.  576),  though  he  is  not  bound 
to  specify  them  all  {In  re  Daivson  &  Bryan,  1860,  28  Beav.  605 ; 
54  E.  R.  498) ;  "  it  is  usual  to  point  out  two  or  three  or  more  items  of 
overcharge  as  a  sample,  and  if  they  cannot  be  supported  the  bill  must 
be  referred  to  taxation  "  {ibid,  per  Romilly,  M.R.,  p.  606). 

In  In  re  Boycott,  1885,  29  Ch.  D.  571,  Bowen,  L.J.,  considered  that 
when  a  bill  was  so  large  as  to  be  "  redolent  of  overcharge,"  it  was  not 
necessary  that  specific  items  of  overcharge  should  be  pointed  out ;  but 
Fry,  L.J.,  did  not  assent  to  this  view. 

/ 


488  SOLICITOR 

Where  the  bill  is  in  the  possession  of  the  solicitor,  who  refuses  to 
produce  it,  taxation  will  be  ordered,  without  any  items  of  overcharge 
being  specified  {In  re  Loughborough,  1857,  23  Beav.  439). 

The  following  are  instances  in  which  taxation  was  directed  on  the 
mere  ground  of  overcharge : — 

Where  executors  had  been  charged  by  their  solicitor  considerably 
more  than  they  themselves  would  be  allowed  against  their  testator's 
estate  {Ex  parte  Dickson,  1856,  8  De  Gr.  M.  &  G.  655);  where  a  mort- 
gagor's solicitor  charged  his  client  a  scale  fee  "  for  negotiating  loan  "  in 
addition  to  the  procuration  scale  fee  paid  to  the  mortgagee's  solicitor 
{In  re  Pyhus,  1887,  35  Ch.  D.  568;  In  re  Eley,  1887,  37  Ch.  D.  40); 
where  a  considerable  portion  of  the  bill  was  for  business  which  in  the 
exercise  of  an  honest  and  fair  discretion  ought  never  to  have  been 
transacted  {In  re  Barrow,  1853,  17  Beav.  547;  51  E.  R.  1146);  where 
the  solicitors  on  being  paid  gave  an  undertaking  to  refund  what  might 
be  "  found  to  be  in  excess  of  what  they  were  entitled  to  receive  "  {In  re 
Fisher,  1854,  18  Beav.  183 ;  52  E.  R.  72 ;  and  see  In  re  Foljamhe,  1846, 

9  Beav.  402 ;  50  E.  R.  398).  Where  the  solicitor  offered  to  pay  some 
of  the  items  objected  to,  the  Court  directed  taxation,  treating  these  items 
as  omitted  {In  re  Catlin,  1857,  23  Beav.  412;  53  E.  R.  162). 

On  the  other  hand,  the  Court  refused  to  order  taxation  on  the  mere 
ground  of  trifling  overcharges  in  the  bill  {In  re  Drake,  1844, 8  Beav.  123 ; 
50  E.  R.  49) ;  where  the  practice  of  the  Taxing  Office  as  to  the  proper 
amount  to  be  charged  was  not  settled  {In  re  Walsh,  1850, 12  Beav.  490 ; 
50  E.  R.  1148);  and  where  the  overcharge  (though  amounting  to  as 
much  as  £95)  had  been  made  under  a  common  mistake  (/n  re  Glascodine 
&  Carlyle,  1885,  52  L.  T.  781). 

Charges  for  attendances  to  the  extent  of  eight  in  one  day  {In  re  Towle, 
1860,  30  Beav.  170 ;  54  E.  R.  853),  or  for  two  hundred  and  forty  letters 
in  one  year  {In  re  Boyle ;  Ex  'parte  Turner,  1854,  5  De  Gr.,  M.  &  G.  p.  546 ; 
43  E.  R.  981),  are  not  per  se  sufficient  to  induce  the  Court  to  direct 
taxation;  and  semble,  an  item  objected  to,  not  because  the  business  was 
not  done  or  the  charge  was  excessive,  but  because  the  liability  to  pay  it 
is  disputed,  is  not  such  an  overcharge  as  will  warrant  taxation  {Ex parte 
Barton,  1853,  4  De  G.,  M.  &  G.  108 ;  43  E.  R.  448). 

The  lapse  of  twelve  calendar  months  after  payment  of  the  bill  is  an 
absolute  bar  to  taxation  under  the  statute  (s.  41 ;  In  re  Harper,  1847, 

10  Beav.  284;  50  E.  R.  591;  76  R.  R.  127;  Ex  parte  Pemberton,  1852, 
2  De  G.,  M.  &  G.  960 ;  42  E.  R.  1147),  unless  fraud  is  shown  {Ex  parte 
Pemberton,  supra). 

And  it  makes  no  difference  that  the  bill  was  unsigned  {In  re  Sutton 
&  Elliott,  1883, 11  Q.  B.  D.  377 ;  In  re  Falls,  1891,  29  L.  R.  Ir.  1),  or  that 
the  application  to  tax  is  made  under  the  third-party  provisions  (see 
post,  p.  490)  of  the  Act  {In  re  F.  E.  Smith,  1884,  W.  N.  45 ;  32  W.  R. 
408 ;  In  re  Jackson,  1889,  40  Ch.  D.  495 ;  In  re  Downes,  1844,  5  Beav. 
425 ;  49  E.  R.  643 ;  59  R.  R.  545 ;  In  re  Massey,  1845,  8  Beav.  458 ;  50 
E.  R.  180 ;  In  re  Wellborne,  [1901]  1  Ch.  312). 

The  proper  mode  of  opening  a  bill  twelve  months  after  payment  is 
by  action;  see,  for  instances,  Blaqrave  v.  Routh,  1856,  2  Kay  &  J.  509; 
69  E.  R.  884;  8  De  G.,  M.  &  G.  620 ;  44  E.  R.  529 ;  In  re  Webb,  Lambert 
v.  Still,  [1894]  1  Ch.  73 ;  Stanes  v.  Parker,  1846,  9  Beav.  385 ;  50  E.  R. 
392;  73  R.  R.  399,  where  the  suit  failed;  Toddw.  Wilson,  1846,  9  Beav. 
486 ;  50  E.  R.  431 ;  73  R.  R.  408 ;  Coleman  v.  Mellersh,  1850,  2  Mac.  &  G. 
309;  42  E.  R.  119;  Watson  v.  Rodwell,  1878,  7  Ch.  D.  625;  1879,  11 
Ch.  D.  150,  where  it  was  successful. 


SOLICITOE  489 

(iii.)  Taxation  after  Verdict  or  after  Twelve  Months  from  Delivery. — 
Sec.  37  of  the  Sol.  Act,  1843,  further  provides  that  no  bill  shall  be 
taxed  on  the  application  of  the  party  chargeable  after  a  verdict  shall 
have  been  obtained  or  a  writ  of  inquiry  executed  in  any  action  for  the 
recovery  of  the  demand  of  the  solicitor,  his  executor,  etc.,  or  after  the 
expiration  of  twelve  months  after  the  bill  shall  have  been  delivered,  except 
under  special  circumstances,  to  be  proved  to  the  satisfaction  of  the  Court. 
An  application  to  tax  under  this  clause  must  therefore  be  made  by 
summons  at  chambers  (Order  55,  r.  2(15)),  supported  by  proper  evidence 
of  the  special  circumstances  relied  on ;  and  the  general  rule  is,  that  to 
entitle  the  client  to  an  order  "  he  must  show  one  of  two  things — either 
pressure  or  gross  overcharge,  amounting  to  what  this  Court  designates 
as  fraud  "  {In  re  Strother,  1857,  3  Kay  &  J.  p.  527 ;  69  E.  K.  1218 ;  per 
Wood,  V.-C. ;  and  see  In  re  Browne,  1852, 1  De  G.,  M.  &  G.  322 ;  42  E.  K. 
576;  In  re  Hook,  1861,  3  Gif.  372;  66  E.  K.  454;  In  re  Pyhts,  1887, 
35  Ch.  D.  568 ;  In  re  Eley,  1887,  36  W.  K.  96).  The  rule  laid  down  by 
these  cases,  however,  is  not  exhaustive,  and  taxation  will  be  ordered 
whenever  the  special  circumstances  of  the  case,  be  they  what  they  may, 
appear  to  the  Court  to  require  it  {In  re  Norman,  1886,  16  Q.  B.  D.  673 
(C.  A.)).  Thus,  taxation  will  be  ordered  of  a  bill  containing  items 
unreasonably  large,  or  charges  requiring  explanation,  or  gross  blunders 
{In  re  Norman;  In  re  Rohinson,  1867,  L.  R  3  Ex.  4),  or  where  there  is 
a  dispute  as  to  the  completeness  of  the  bill  delivered  {In  re  Bagshawe, 
1848,  2  De  G.  &  Sm.  205 ;  64  E.  R.  91 ;  and  see  In  re  Nicholson,  1861, 
3  De  G.,  F.  &  J.  93;  45  E.  R.  813;  In  re  Pomeroy,  [1897]  1  Ch.  284). 
But  the  mere  continuance  of  the  relation  of  solicitor  and  client  is  not 
alone  a  sufficient  reason  for  directing  taxation  {In  re  Elnislie,  1873,  L.  R. 
16  Eq.  326 ;  In  re  Cartwright,  1873,  L.  R.  16  Eq.  473 ;  but  see  Ex  parte 
Flower,  1868,  18  L.  T.  N.  S.  457 ;  In  re  Nicholson).  Nor  is  the  fact  that 
the  solicitor  retains  possession  of  the  client's  papers  {In  re  Gedye,  1851, 
14  Beav.  56;  51  E.  R.  208);  nor  the  fact  that  he  has  commenced  an 
action  against  his  client  {Bennett  v.  Hill,  1853,  21  L.  T.  (0.  S.)  101 ;  and 
see  In  re  Nelson,  Son  &  Hastings,  1885,  30  Ch.  D.  1).  Even  if  there  are 
no  "  special  circumstances "  sufficient  to  warrant  taxation  under  the 
Act  the  Court  may  (and  frequently  does)  refer  the  amount  of  the  charges 
to  a  Taxing-Master  for  modification  {Lumsden  v.  Shipcote  Land  Co., 
[1906]  2  K.  B.  433). 

If  there  has  been  a  succession  of  bills  delivered  by  the  solicitor,  a 
question  often  arises  whether  they  are  really  separate  and  distinct  bills, 
so  that  the  twelve  months  run  as  to  each  of  them  from  the  date  of  its 
delivery ;  or  whether  the  whole  series  really  constitutes  one  bill — several 
chapters  in  one  volume — so  that  the  time  runs  only  from  the  delivery  of 
the  last  of  the  series.  The  Court  of  Appeal  has  laid  down  the  general 
principle  as  follows : — 

Where  a  solicitor  is  retained  to  conduct  litigation,  other  than  an 
ordinary  action  at  common  law,  which  may  extend  over  a  considerable 
period,  and  in  which  breaks  may  occur  of  such  a  kind  as  to  be  equivalent 
to  the  conclusion  of  a  distinct  part  of  the  proceedings,  he  may  deliver 
his  bill  for  business  done  up  to  the  occurrence  of  any  such  break,  and 
demand  payment.  Where,  however,  in  the  course  of  the  proceedings 
several  bills  have  been  sent  in  at  different  times,  it  is  a  question  of  fact 
whether  they  were  sent  in  as  final  bills  for  work  done  up  to  the 
occurrence  of  any  such  break,  so  as  to  be  separate  bills,  or  whether  they 
were  merely  statements  of  account  or  portions  of  one  entire  bill,  so  as  to 


490  SOLICITOR 

make  the  whole  liable  to  taxation  if  the  last  part  has  been  delivered 
within  twelve  months  of  the  application  to  tax  {In  re  Romer  &  Haslam, 
[1893]  2  Q.  B.  286). 

Successive  bills  of  costs  in  such  matters  as  bankruptcy,  administra- 
tion, or  winding-up  are  clearly  not  necessarily  to  be  treated  as  one  bill 
brought  down  to  the  date  of  the  latest  delivery  {In  re  Hall  &  Barker, 
1878,  9  Ch.  D.  538 ;  In  re  Hudson,  [1904]  W.  N".  32 ;  and  see  In  re  Nelson, 
Son  &  Hastings,  1885,  30  Ch.  D.  1 ;  Underwood,  Son  &  Fiper  v.  Lewis, 
[1894]  2  Q.  B.  306).  In  In  re  Cartwright,  1873,  L.  E.  16  Eq.  469,  a 
signed  letter  sent  by  the  solicitor  to  the  client  making  additions  to  his 
charges  was  held  under  the  circumstances  to  have  had  the  effect  of 
bringing  down  a  series  of  bills  to  the  date  of  the  letter,  though  most  of 
the  bills  had  been  delivered  more  than  twelve  months  before  the  appli- 
cation. The  effect  of  a  winding-up  order  is  to  suspend  the  operation  of 
the  twelve  months'  rule,  and  accordingly  a  bill  taxable  in  point  of  time 
at  the  date  of  the  order,  and  a  bill  subsequently  delivered  to  the  ofhcial 
liquidator  must  both  be  taxed,  although  more  than  twelve  months  may 
have  elapsed  since  the  delivery  of  the  second  bill  {Ex  parte  Evans,  1870, 
L.  R.  11  Eq.  151 ;  and  see  Ex  parte  Quitter,  1850,  4  De  G.  &  Sm.  183 ; 
64  E.  R.  789).  Retainer  of  a  bill  for  twelve  months  without  objection 
is  only  primd  facie  evidence  of  its  reasonableness,  and  the  executor  of 
the  client  is  not  estopped  from  disputing  any  of  the  items  in  an  action 
to  administer  the  client's  estate  and  having  them  referred  to  the  Taxing- 
Master,  although,  there  being  no  "  special  circumstances,"  taxation  could 
not  have  been  ordered  under  the  Act  {In  re  Park,  Cole  v.  Park,  1889, 
41  Ch.  D.  326;  and  see  Allen  v.Jarvis,  1869,  L.  R.  4  Ch.  616;  Ex  parte 
Ditton ;  In  re  Woods,  1880, 13  Ch.  D.  318) ;  and  see  further  as  to  taxation 
after  twelve  months,  Anderson  v.  May,  1800,  2  Bos.  &  Pul.  237 ;  Hooper 
V.  Till,  1779,  1  Dougl.  198 ;  Ex  parte  Blair,  1870,  L.  R.  5  Ch.  482 ;  De 
Bay  V.  Griffin,  1875,  L.  R.  10  Ch.  291. 

(iv.)  Taxation  at  the  Instance  of  Third  Parties. — Cases  in  which  the 
costs  really  come  out  of  the  pocket  of  some  third  party  (see  ante,  p.  477), 
who  apart  from  statute  would  have  no  right  to  tax  the  bill  {In  re 
Jackson,  1889,  40  Ch.  D.  495 ;  In  re  Spencer,  1882,  51  L.  J.  Ch.  271 ; 
30  W.  R.  296),  are  provided  for  by  sees.  38  and  39  of  the  Sol.  Act, 
1843. 

{a)  Taxation  hy  Third  Party  Liable. — Sec.  38  provides  that  where 
any  person,  not  being  the  "  party  chargeable"  with  the  bill,  shall  be  liaUe 
to  pay  or  shall  have  paid  the  bill  either  to  the  solicitor,  his  executor, 
administrator,  or  assignee,  or  to  the  party  chargeable,  such  person,  his 
executor,  administrator,  or  assignee,  may  make  such  application  for  taxa- 
tion as  the  party  chargeable  might  himself  make,  and  the  same  order 
shall  be  made  thereupon,  and  the  same  course  pursued  as  if  the  application 
were  made  by  the  party  so  chargeable.  Provided  that  if  the  application 
is  made  when,  under  the  provisions  of  the  Act,  taxation  could  not  be 
directed  except  under  special  circumstances,  the  Court  may  take  into 
consideration  any  additional  special  circumstances  applicable  to  the 
person  making  the  application,  although  such  circumstances  might  not 
be  applicable  to  the  party  chargeable  if  he  himself  were  the  applicant 
(see  In  re  Vardy,  1851,  20  L.  J.  Ch.  325). 

Eor  the  purpose  of  any  such  taxation  upon  the  application  of  the 
person  not  being  the  party  chargeable,  the  Court  may  order  the 
solicitor,  his  executor,  administrator,  or  assignee,  to  deliver  to  the  party 


SOLICITOE  491 

applying  for  the  taxation  a  copy  of  the  bill  on  payment  of  the  costs  of 
the  copy  (see  In  re  Kellock,  1887,  56  L.  T.  887) ;  but  no  bill  which  has 
been  taxed  once  can  be  taxed  a  second  time,  except  under  special 
circumstances  (s.  40;  and  see  In  re  Blackmore,  1851,  13  Beav.  154; 
51  E.  E.  60). 

Under  sec.  38  a  lessee  may  tax  the  bill  of  the  lessor  s  solicitor  (In  re 
Negus,  [1895]  1  Ch.  73  ;  In  re  Neivman,  1867,  L.  E.  2  Ch.  707);  and  a 
mortgagor  {In  re  Wells,  1845,  8  Beav.  416  ;  50  E.  E.  163  ;  68  E.  E.  132 ; 
In  re  Griffith  &  Co.,  1883,  5'3  L.  J.  Ch.  303),  or  his  trustee  in  bankruptcy 
(In  re  Allingham,  1886,  32  Ch.  D.  36),  or  a  subsequent  incumbrancer 
{In  re  Taylor,  1854,  18  Beav.  165;  In  re  Jessop,  1863,  32  Beav.  406; 
55  E.  E.  159),  may  tax  the  bill  of  the  mortgagee's  solicitor.  So,  the 
unsuccessful  party  in  an  arbitration  may  tax  the  bill  of  costs  paid  by  the 
umpire  to  his  solicitor  {In  re  Collyer,  Bristow  &  Co.,  [1901]  2  K.  B.  839). 
But  the  section  only  applies  where  the  third  party  stands  in  such  a 
relation  to  the  client  that  he  is  bound  to  indemnify  the  client  against 
the  costs  {In  re  Heritage ;  Ex  parte  Docker,  1878,  3  Q.  B.  D.  726).  A 
mere  gratuitous  or  officious  payment  gives  no  right  to  tax  {In  re  Becke 
&  Floiver,  1844,  5  Beav.  406 ;  49  E.  E.  635 ;  59  E.  E.  537) ;  and  the 
section  has  reference  only  to  a  taxation  as  between  solicitor  and  client, 
and  not  to  a  party  and  party  taxation  {In  re  Gruivdy,  Kershaw  &  Co., 
1881,  17  Ch.  D.  108 ;  In  re  Cowdell,  1883,  52  L.  J.  Ch.  246).  Where 
there  is  an  agreement  by  a  third  party  to  pay  costs  due  to  a  solicitor 
from  his  client  it  is  no  bar  to  an  application  for  taxation  under  sec.  38 
that  questions  will  arise  as  to  the  construction  of  the  agreement,  for  they 
may  be  decided  by  the  Taxing-Master  {In  re  Hirst  &  Capes,  [1908] 
1  K.  B.  982). 

The  order  for  taxation  is  obtained  as  of  course  wherever  this  would 
have  been  proper,  if  the  original  client  had  been  the  applicant  {In  re 
Bracey,  1845,  8  Beav.  338;  In  re  Hartley,  1861,  30  Beav.  620;  54  E.  E. 
1031 ;  and  see  ante,  p.  482).  If  the  bill  has  been  delivered  more  than 
twelve  months,  or  has  been  paid,  the  application  is  made  by  summons, 
and  "special  circumstances"  must  be  shown  {In  re  Becke  &  Flower, 
1844,  5  Beav.  406 ;  49  E.  E.  635 ;  59  E.  E.  537 ;  In  re  Carew,  1844, 
8  Beav.  150  ;  50  E.  E.  60 ;  In  re  Grijffith  &  Co.,  ubi  supra ;  see  ante, 
p.  485).  For  form  of  order,  see  Seton,  6th  ed.,  vol.  i.  p.  289 ;  and  as  to 
delivery  of  the  bill  in  the  case  of  a  third  party  taxation,  see  In  re 
Robertson,  1889,  42  Ch.  D.  553. 

The  third  party  stands  in  the  shoes  of  the  client,  and  if  for  any  reason 
the  client  himself  is  not  entitled  to  an  order  for  taxation,  neither  is  the 
third  party ;  his  only  remedy  in  that  case  is  by  action  against  the  client 
{In  re  Massey,  1865,  34  Beav.  463  ;  55  E.  E.  714;  Ex  parte  Dickson,  1856, 
8  De  G.,  M.  &  G.  655 ;  44  E.  E.  542 ;  In  re  Holliday  &  Godlee,  1888, 
58  L.  T.  301).  But  the  third  party  does  not,  by  obtaining  an  order  to 
tax,  alter  the  nature  or  enlarge  the  scope  of  his  liability;  thus  items 
which  a  lessee  or  a  mortgagor  is  not  liable  to  pay  as  between  himself  and 
the  lessor  or  the  mortgagee,  cannot  be  charged  against  him,  though  the 
solicitor  may  be  properly  entitled  to  charge  them  against  his  own  client 
{In  re  Gray,  [1901]  1  Ch.  239 ;  In  re  Longhotham  &  Sons,  [1904]  2  Ch. 
152;  In  re  Cohen  &  Cohen,  [1905]  2  Ch.  137). 

{h)  Taxation  hy  Third  Party  Interested. — Sec.  39  provides  that  in  any 
case  in  which  a  trustee,  executor,  or  administrator  has  become  chargeable 
with  a  bill  of  costs,  the  Court,  upon  the  application  of  a  party  interested 
in  the  property  out  of  which  such  trustee,  executor,  or  administrator  may 


492  SOLICITOR 

have  paid  or  be  entitled  to  pay  such  bill,  may  order  the  bill  to  be  taxed, 
with  such  directions  and  subject  to  such  conditions  as  the  Court  thinks 
fit,  and  may  make  such  order  as  the  Court  thinks  fit  for  the  payment  of 
what  may  be  found  due,  and  of  the  costs  of  the  taxation,  to  or  by  the 
solicitor,  his  executor,  etc.,  by  or  to  the  party  making  the  application, 
having  regard  to  the  provisions  of  the  Act  relative  to  applications  for  the 
like  purpose  by  the  party  chargeable  with  such  bill,  so  far  as  the  same 
are  applicable ;  and  in  making  the  order  the  judge  may  take  into  con- 
sideration the  extent  and  nature  of  the  interest  of  the  party  making  the 
application.  Provided  that  where  any  money  is  directed  to  be  paid  by 
the  solicitor,  or  his  executor,  etc.,  the  judge  may,  if  he  thinks  fit,  order 
the  same  to  be  paid  to  the  trustee,  executor,  or  administrator  chargeable 
with  the  bill,  instead  of  being  paid  to  the  party  making  the  application ; 
and  when  the  party  making  the  application  pays  any  money  to  the 
solicitor,  his  executor,  etc.,  in  respect  of  the  bill,  he  shall  have  the  same 
right  to  be  paid  by  such  trustee,  executor,  or  administrator  as  the 
solicitor,  his  executor,  etc.,  had.  The  provisions  of  sec.  40  (see  s^ipra) 
also  apply  in  the  case  of  an  application  for  taxation  by  a  third  party 
interested. 

An  application  for  taxation  under  sec.  39  is  made  by  summons  at 
chambers  {In  re  Straford,  1852,  16  Beav.  27 ;  Order  55,  r.  2  (15)).  For 
form  of  order,  see  Seton,  6th  ed.,  vol.  i.  p.  290. 

A  bankrupt  who  has  obtained  his  discharge,  and  become  entitled  to 
the  surplus  of  his  estate,  is  not  entitled  to  an  order  {In  re  Leadhitter, 
1878,  10  Ch.  D.  388).  A  creditor  who  has  obtained  judgment  for 
administration,  however,  is  so  entitled  {In  re  Jones  &  Everett,  [1904] 
2  Ch.  363). 

A  beneficiary  who  obtains  an  order  stands  in  the  place  of  the  trustee 
and  the  taxation  therefore  proceeds  as  between  the  solicitor  and  his  own 
client  {In  re  Press  &  Inskip,  1865,  35  Beav.  34 ;  55  E.  E.  806 ;  In  re 
Brown,  1867,  L.  Pw  4  Eq.  464  ;  In  re  Miles,  [1903]  2  Ch.  518) ;  but  the 
solicitor  cannot  charge  against  the  trust  estate  anything  not  strictly 
necessary,  though  expressly  directed  by  the  trustee;  for  such  extra 
charges  he  must  look  to  the  trustee  personally  {In  re  Brown,  supra).  It 
is  doubtful  whether  on  an  application  to  tax  a  paid  bill  "  special  circum- 
stances "  must  be  shown ;  but  the  Court  has  ample  power  to  make  such 
order  as  it  deems  right  {In  re  Choivne,  1884,  52  L.  T.  75) ;  and  see  further 
as  to  sec.  39,  In  re  Boimies,  1844,  5  Beav.  425 ;  49  E.  E.  643 ;  59  E.  R. 
545 ;  In  re  Wellhorne,  [1901]  1  Ch.  312.  Xo  order,  however,  can  be  made 
for  taxation  unless  the  application  is  made  within  tioelve  months  after 
payment  of  the  bill  {In  re  Wellhorne). 

Costs  of  Taxation. — The  costs  of  a  taxation  under  the  Act  are  dealt 
with  by  sec.  37,  which  provides  that  if  a  reference  to  taxation  is  made 
upon  the  application  of  the  party  chargeable,  or  upon  the  application 
of  the  solicitor,  or  his  executor,  administrator,  or  assignee,  and  the 
party  chargeable  attends  the  taxation  (see  In  re  Upperton,  1882,  30  W.  E. 
840),  the  costs  of  the  reference  are  to  be  paid  according  to  the  event  of 
the  taxation  as  follows : — If  the  bill  when  taxed  be  less  ly  a  sixth  part 
than  the  bill  delivered,  then  the  solicitor,  or  his  executor,  administrator, 
or  assignee,  pays  the  costs ;  and  if  the  bill  when  taxed  be  not  less  by  a 
sixth  part  than  the  bill  delivered,  then  the  "  party  chargeable  "  pays  the 
costs.  Every  order  for  a  reference  must  direct  the  Taxing-Master  to  tax 
the  costs  of  the  reference,  and  to  certify  what  is  due  to  or  from  the 


SOLICITOE  493 

solicitor,  or  his  executor,  administrator,  or  assignee,  in  respect  of  the 
bill  and  of  the  costs  of  the  reference,  if  payable ;  but  the  Master  may 
certify  specially  any  circumstances  relating  to  the  bill  or  taxation,  and 
the  judge  may  thereupon  make  any  such  order  as  to  the  costs  of  the 
taxation  as  he  thinks  right.  Where  the  reference  is  made  when  not 
authorised  to  be  made,  except  under  "  special  circumstances,"  the  Court 
may  give  special  directions  as  to  the  costs  of  the  reference. 

Items  struck  out  on  taxation  as  being  chargeable  against  another 
person  must  be  taken  into  account  in  determining  the  costs  of  the 
taxation  {In  re  Clark,  1851,  13  Beav.  173  ;  51  E.  K.  67 ;  1  De  G.,  M.  &  G. 
43 ;  42  E,  E.  467).  As  to  what  items  are  properly  included  in  a  bill 
(for  the  purpose  of  applying  the  one-sixth  rule),  and  what  should  be 
presented  in  a  separate  cash  account,  see  In  re  Remnant,  1849,  11  Beav, 
603 ;  50  E.  R  949 ;  In  re  Kingdmi  &  Wilson,  [1902]  2  Ch.  242,  over- 
ruling In  re  Iamb,  1889,  23  Q.  B.  D.  5 ;  In  re  Fletcher  &  Dyson, 
[1903]  2  Ch.  688 ;  In  re  Mercantile  Lighterage  Co.,  [1906]  1  Ch.  491 ; 
In  re  Buckioell,  [1902]  2  Ch.  596;  In  re  Grant,  [1906]  1  Ch.  124;  In  re 
Blair,  [1906]  2  K.  B.  131.  Where  the  Taxing-Master  disallows  some 
items  and  adds  others,  the  bill  is  treated  as  increased  by  the  sum  added, 
and  then  reduced  by  the  sum  disallowed  {In  re  Reuben  Hartley,  1856, 
2  Jur.  N.  S.  448).  If  a  solicitor  sends  in  a  bill  for  a  certain  sum  but 
offers  to  take  less,  the  five-sixths  must,  as  a  general  rule,  be  calculated 
on  the  larger  amount  {In  re  Carthew  ;  In  re  Fault,  1884,  27  Ch.  D.  485  ; 
see  also  In  re  Elwes  &  Turner,  1888,  58  L.  T.  580 ;  W.  N.  68 ;  In  re 
Mackenzie,  1893,  69  L.  T.  751 ;  In  re  Hellard  &  Beives,  [1896]  2  Ch. 
229).  As  to  the  liability  for  the  costs  of  a  taxation  when  the  solicitor 
becomes  bankrupt  or  insolvent,  see  In  re  Feers,  1856,  21  Beav,  520; 

52  E.  E.  961;    Shea  v.  Boschetti,  In  re   Feile,    1858,    25   Beav.   561; 

53  E.  E.  751. 

In  the  case  of  third-party  taxations  under  sees.  38  and  39  there  is 
no  general  rule  that  the  costs  must  in  all  cases  follow  the  result  of  the 
taxation  {In  re  Kingdon  &  Wilson,  [1902]  2  Ch.  242). 

A  solicitor  may  be  attached  for  non-payment  of  the  costs  of  a 
taxation  which  he  has  been  ordered  to  pay  {In  re  A  Solicitor,  [1895] 
2  Ch,  66). 

Security  for  Costs  of  Taxation. — If  a  client  who  applies  for  taxation 
is  resident  out  of  the  jurisdiction  he  may  be  required  to  give  security 
for  the  costs  of  the  reference,  and  also  for  the  balance  that  may  be 
found  due  from  him  {Anon.,  1841,  12  Sim.  262;  59  E.  E.  1132; 
In  re  Norman,  1849,  11  Beav.  401 ;  50  E.  E.  872;  In  re  Dolman,  1847, 
11  Jur.  1095).  As  to  security  for  costs  generally,  see  Security  fok 
Costs. 

Interest  on  Costs  and  Disbursements. — By  rule  7  of  the  General  Order 
made  under  the  Sol.  Eemuneration  Act,  1881,  a  solicitor  may  charge 
interest  at  the  rate  of  4  per  cent,  per  annum  on  his  disbursements  and 
costs,  whether  by  scale  or  otherwise,  from  the  expiration  of  one  month 
from  demand  from  the  client ;  and  in  cases  where  the  same  are  payable 
by  an  infant,  or  out  of  a  fund  not  presently  available,  such  demand  may 
be  made  on  the  parent  or  guardian,  or  the  trustee,  or  other  person  liable. 
It  would  seem  that  this  provision  is  confined  to  the  case  of  conveyanc- 
ing and  non-contentious  business,  though  this  point  has  not  been 
expressly  decided  (see  In  re  Marsden,  cited  below). 

The  mere  delivery  of  a  bill  is  a  sufficient  "  demand."  Thus,  where 
the  solicitor  delivered  his  bill  without  claiming  interest,  and  the  bill 


494  SOLICITOR 

was  taxed  and  paid,  and  he  then  claimed  interest  for  one  month  after 
delivery  of  the  bill,  it  was  allowed  {Blair  v.  Gardner,  1887,  19  Q.  B.  D. 
516). 

Where  an  order  has  been  made  in  an  administration  action  for 
taxation  and  payment  of  costs  out  of  the  estate,  and  division  of  the 
balance  among  the  beneficiaries,  interest  is  not  payable  on  the  costs 
unless  there  has  been  a  special  direction  to  that  effect  {In  re  Marsden, 
Withington  v.  Neumann,  1889,  40  Ch.  D.  475).  If  the  client  has  died, 
his  legal  personal  representative  is  the  person  from  whom  payment 
should  be  demanded  {In  re  McMurdo,  Fenfield  v.  McMurdo,  [1897] 
1  Ch.  119).  If  there  are  several  clients  a  demand  should  be  made  on 
each  of  them  {In  re  Metcalfe,  Metcalfe  v.  Blencowe,  1887,  57  L.  J.  Ch.  82). 

A  solicitor  is  entitled  after  taxation  of  his  bill  to  interest  at  4  per 
cent,  on  the  amount  of  the  bill  as  taxed  from  one  month  from  the  date 
of  its  delivery  {In  re  Strother,  1857,  3  Kay  &  J.  518,  528 ;  69  E.  R. 
1214;  and  see  further,  as  to  the  power  of  the  Court  to  allow  interest 
on  costs,  23  &  24  Vict.  c.  127,  s.  27). 

Upon  every  taxation  of  costs  incurred  in  connection  with  conten- 
tious business  the  Taxing-Master  may  allow  interest  at  such  rate  and 
from  such  time  as  he  thinks  just  on  moneys  disbursed  by  the  solicitor 
for  his  client,  and  on  moneys  of  the  client  in  the  hands  of  the  solicitor 
and  improperly  retained  by  him  (Sol.  Act,  1870,  s.  17 ;  Sol.  Remunera- 
tion Act,  1881,  s.  9).  This  provision  applies  only  as  between  a  solicitor 
and  his  own  client  {Hartland  v.  Murrell,  1873,  L.  R.  16  Eq.  285).  It 
does  not  apply  to  accounts  between  a  country  solicitor  and  his  town 
agent  (PTar^  v.  Eyre,  1880,  15  Ch.  D.  130). 

A  solicitor  who  has  made  disbursements  for  his  client,  and  has 
received  from  him  sums  paid  generally  on  account,  but  sufficient  to 
cover  the  disbursements,  is  not  entitled  to  appropriate  the  sums  so 
received  to  costs  for  which  no  bill  has  yet  been  delivered,  so  that  he 
may  claim  interest  under  the  Sol.  Act,  1870,  s.  17  {In  re  Harrison, 
1886,  33  Ch.  D.  52). 

XIII.  Recovery  of  Costs. 

A  solicitor  can  compel  his  client  to  pay  him  the  amount  due  to  him 
for  costs  in  four  ways  : — 

(i.)  By  action  at  law. 

(ii.)  By  enforcing  payment  under  the  submission  to  pay  contained 
in  an  order  to  tax. 

(iii.)  By  enforcing  his  lien. 

(iv.)  By  obtaining  a  charging  order  under  the  Sol.  Act,  1860. 

(i.)  As  to  an  action  against  a  client  on  a  bill  of  costs,  see  Bill  of 
Costs,  Vol.  II.  p.  191. 

(ii.)  As  to  enforcing  payment  of  costs  under  the  submission  by  the 
client  to  pay  what  shall  be  found  due,  which  is  invariably  inserted  in 
an  order  to  tax  when  obtained  at  the  instance  of  the  client,  see  Vol.  II. 
p.  191. 

(iii.)  The  lien  of  a  solicitor  (independent  of  statute)  is  twofold — 
{a)  On  his  client's  papers ;  (&)  on  the  judgment  or  property  recovered  in 
an  action. 

{a)  Lien  on  Papers. — A  solicitor  has  a  lien  for  his  costs  on  docu- 
ments belonging  to  the  client  which  have  come  into  the  solicitor's  hands 


SOLICITOK  495 

in  the  course  of  his  professional  employment.  The  lien  is  not  confined 
to  the  costs  of  the  particular  business  in  the  course  of  which  the  docu- 
ments have  come  into  his  possession,  but  extends  to  all  his  costs.  It  is, 
however,  merely  a  right  of  retainer,  and  cannot  be  actively  enforced 
{Bozon  V.  Bolland,  1839,  4  Myl.  &  Cr.  p.  358 ;  41  E.  K.  139 ;  48  E.  R. 
121;  Steedman  v.  Webh,  1839,  4  My.  &  Cr.  346;  Blunden  v.  Besart, 
1842,  2  Dr.  &  War.  405;  Pelhj  v.  Wathen,  1851,  1  De  G.,  M.  &  G.  23; 
42  E.  R  459) ;  and  it  is  subject  to  the  provisions  of  Order  52,  r.  25 
(see  ante,  p.  477),  an  order  under  which  is  final  for  the  purpose  of  an 
appeal  {Haydon  v,  Cartwright,  [1902]  W.  N.  163). 

The  lien  is  not  the  result  of  contract ;  it  is  not  an  equitable  charge ; 
and  it  is  not  an  incumbrance  affecting  the  estate  itself  {In  re  Llewellin, 
[1891]  3  Ch.  p.  14:1,  per  Chitty,  J. ;  and  see  In  re  Haivkes,  Ackerman  v. 
Locklmrt,  [1898]  2  Ch.  1). 

It  extends  only  to  taxable  costs,  charges,  and  expenses,  and  not  to 
such  items  as  ordinary  advances  {In  re  Taylor,  Stileman  &  Underwood, 
[1891]  1  Ch.  590 ;  In  re  Galland,  1885,  31  Ch.  D.  296 ;  In  re  Hanbury, 
Whitting  &  Nicholson,  1896,  75  L.  T.  449),  but  it  may  be  asserted 
though  the  debt  is  barred  by  the  Statute  of  Limitations  {In  re  Carter, 
1885,  55  L.  J.  Ch.  230).  It  may  be  assigned,  together  with  the  costs 
in  respect  of  which  it  is  claimed  {Bull  v.  Faulkner,  1848,  2  De  G.  &  Sm. 
772 ;  64  E.  R.  346 ;  79  R.  R.  367) ;  and  it  may  be  asserted  by  the 
personal  representative  of  the  solicitor  {Redfearn  v.  Sowerhy,  1818, 
1  Swans.  84;  36  E.  R.  307;  18  R.  R.  31). 

It  is  not  lost  by  the  documents  being  placed  in  the  hands  of  an 
agent  or  trustee  on  behalf  of  the  solicitor  ( Watson  v.  Lyon,  1855,  7  De  G., 
M.  &  G.  288 ;  44  E.  R.  113),  nor,  in  the  case  of  a  policy  of  insurance, 
by  the  solicitor's  omission  to  give  notice  to  the  insurance  office  (  West  of 
England  Bank  v.  Batchelor,  1882,  51  L.  J.  Ch.  199). 

A  solicitor  does  not  acquire  a  lien  for  costs  due  to  himself  solely 
upon  documents  which  come  into  the  joint  possession  of  himself  and 
his  partner  {Pelly  v.  Wathen,  1849,  7  Hare,  351 ;  68  E.  R.  144 ;  1  De  G., 
M.  &  G.  23 ;  42  E.  R.  459) ;  but  he  does  not  lose  his  lien  for  such  costs 
upon  documents  which,  having  come  into  his  own  possession,  are  after- 
wards continued  in  the  possession  of  himself  and  his  partner  {ibid.).  He 
has  no  lien  on  papers  which  come  into  his  hands  for  costs  due  to  a  firm 
of  which  he  was  formerly  a  member  {In  re  Gough,  [1894]  W.  N".  76 ; 
Vaughan  v.  Vanderstegen,  Annesley's  Case,  1854,  2  Drew.  409 ;  61  E.  R. 
778),  nor  on  papers  delivered  to  him  after  his  client  has  become  bank- 
rupt {Ex  parte  Lee,  1793,  2  Ves.  285;  30  E.  R.  636);  though  the  lien  is 
good  as  to  papers  received  before  the  bankruptcy  {Lambert  v.  Buckmaster, 
1824,  2  Barn.  &  Cress.  616 ;  26  R.  R.  492 ;  ^x  parte  Underwood,  1845, 
De  G.  190) ;  but  the  trustee  in  bankruptcy  has  a  right  to  inspect  the  docu- 
ments {In  re  Toleman  <&  England;  Ex  parte  Bramble,  1880,  13  Ch.  D. 
885 ;  and  see  Bankruptcy  Rules,  1886,  r.  349 ;  In  re  Win^low ;  Ex  parte 
Godfrey,  1886,  16  Q.  B.  D.  696).  A  solicitor  has  no  lien  on  the  deeds 
of  one  partner  for  business  done  for  the  firm  {Turner  v.  Deane,  1849, 
3  Ex.  Rep.  836). 

The  lien  extends  not  only  to  deeds  and  papers,  but  to  other  articles, 
e.g.  policies  of  assurance  (  West  of  England  Bank  v.  Batchelor,  ubi  supra), 
cheques  {The  General  Share  Trust  Co.  v.  Chapman,  1876,  1  C.  P.  D.  771), 
or  books  {Friswell  v.  King,  1846,  15  Sim.  191 ;  60  E.  R.  590 ;  74  R.  R. 
57) ;  but  not  to  papers  delivered  to  the  solicitor  in  another  capacity, 
as  mortgagee  {Shefield  v.  Eden,  1878,  10  Ch.  D.  291 ;  Pelly  v.  Wathen, 


I 


496  SOLICITOR 

1849,  7  Hare,  351 ;  68  E.  R.  144 ;  Vaughan  v.  Vanderstegen,  Annesley's 
Case,  1854,  2  Drew.  409 ;  61  E.  R.  778),  or  steward  of  a  manor  (Chavi- 
pernoivne  v.  Scott,  1821,  6  Madd.  93 ;  56  E.  R.  1026  ;  22  R.  R.  248) ;  and 
he  has  no  lien  on  deeds  which  came  into  his  possession  and  are  held  by 
him  as  agent  for  a  third  party  (Bx  parte  Fuller ;  In  re  Long,  1881,  16 
Ch.  D.  617),  or  on  the  original  will  of  his  client  (Balch  v.  Symes,  1823, 
Turn.  &  R.  87;  37  E.  R.  1028;  23  R.  R.  195),  or  on  a  deed  executed 
by  the  client  in  favour  of  the  solicitor,  but  reserving  a  life  interest  and 
a  power  of  revocation  {Batch  v.  Symes,  supra) ;  and  a  solicitor  who  has 
prepared  a  marriage  settlement  on  the  instructions  of  the  husband  has 
no  lien  on  it  as  against  the  trustees  of  the  settlement  {In  re  Lawrance, 
Bowker  v.  Austin,  [1894]  1  Ch.  556,  not  following  In  re  Gregson,  1858, 
26  Beav.  87). 

A  town  clerk,  who  is  also  a  solicitor,  has  the  ordinary  lien  on  papers 
of  the  corporation  in  his  hands,  but  not  on  such  as  he  holds  merely 
as  town  clerk  {B.  v.  Sankey,  1836,  5  Ad.  &  E.  423 ;  44  R.  R.  453 ; 
Newington  Local  Board  v.  Eldridge,  1879,  12  Ch.  D.  349). 

The  client  cannot,  however,  give  his  solicitor  a  lien  on  deeds  or  papers 
more  extensive  than  he  could  give  him  on  the  property  to  which  they 
relate  {Felly  v.  Wathen,  1849,  7  Hare,  351;  68  E.  R.  144;  1  De  G., 
M.  &  G.  16  ;  42  E.  R.  457 ;  Wakefield  v.  Newhon,  1844,  6  Q.  B.  276 ; 
Smith  V.  Chichester,  1842,  2  Dr.  &  War.  393). 

"  The  general  lien  of  a  solicitor,"  says  Lord  Cranworth  in  Felly  v. 
Wathen,  "  is  merely  a  right  to  keep  back  from  his  client  the  deeds  and 
papers  which  he  holds  as  solicitor,  until  his  bill  of  costs  is  satisfied. 
It  is  a  right  derived  entirely  through  the  client,  and  therefore,  on  the 
most  obvious  principles  of  justice,  cannot  go  beyond  the  right  of  the 
client  himself.  If  the  client's  right  to  the  deeds  which  came  to  the 
hands  of  the  solicitor  is  absolute,  so  will  be  the  right  of  the  solicitor. 
If  the  deeds  in  the  hands  of  the  client  are  subject  to  any  rights  out- 
standing in  third  parties,  such  rights  will  follow  them  into  the  hands 
of  the  solicitor;"  and  see  In  re  Llewellin,  [1891]  3  Ch.  p.  148. 

Where  a  solicitor  acts  for  both  mortgagor  and  mortgagee  he  cannot, 
as  against  the  mortgagee,  set  up  a  lien  for  costs  due  to  him  from  the 
mortgagor ;  it  is  his  duty  as  solicitor  for  the  mortgagee  to  see  that  he 
gets  a  good  security,  including  possession  of  the  deeds,  and  the  solicitor 
cannot  be  heard  to  say,  "  I  have  been  guilty  of  negligence ;  I  do  not 
hold  the  deeds  on  your  account"  {In  re  Snell,  1877,  6  Ch.  D.  107,  'per 
Jessel,  M.R. ;  In  re  Mason  &  Taylor,  1878,  10  Ch.  D.  729;  Ex  parte 
Fuller;  In  re  Long,  1881, 16  Ch.  D.  617 ;  In  re  Nicholson;  Ex  parte  Quinn, 
1883,  53  L.  J.  Ch.  302).  See,  however,  Macfarlane  v.  Lister,  1887,  37 
Ch.  D.  88 ;  Brunton  v.  Electrical  Engineering  Corporation,  [1892]  1  Ch. 
434;  and  In  re  Walker,  1893,  68  L.  T.  517. 

A  town  agent  has  a  lien  on  the  lay  client's  papers  for  the  amount 
due  from  the  country  solicitor,  but  only  to  the  extent  of  the  amount 
due  to  the  latter  from  the  lay  client  {Lawrence  v.  Fletcher,  1879, 12  Ch.  D. 
858) ;  and  if  the  client  settles  with  the  country  solicitor,  whether  by 
payment,  set-off,  or  otherwise,  without  notice  of  the  agent's  claim,  the  lien 
is  gone  {Waller  v.  Holmes,  1869,  1  John.  &  H.  239;  70  E.  R.  735; 
Peatfield  v.  Barlow,  1869,  L.  R.  8  Eq.  61 ;  Cockayne  v.  Harrison,  1873, 
L.  R.  15  Eq.  298).  As  to  the  nature  and  extent  of  the  lien  of  the  town 
agent  against  the  country  solicitor,  see  In  re  Jones  &  Boherts,  [1905] 
2  Ch.  219,  and  cases  there  cited. 

The  solicitor  of  a  limited  company  has  no  lien  on  the  share  register 


SOLICITOR  497 

and  minute-book ;  nor  can  he  retain  other  documents  which  have  come 
to  his  hands  pending  the  winding-up,  though  he  may  retain  such  as 
came  to  his  hands  before  the  presentation  of  the  petition  {In  re  Capital 
Fire  Insurance  Assoc,  1883,  24  Ch.  D.  408) ;  and  he  has  no  lien  for  the 
costs  of  business  which  was  ultra  vires  {Howard  &  Dolman's  Case, 
1863,  1  Hem.  &  M.  433).  But  a  lien  for  costs  incurred  before  the  issue 
of  debentures  issued  as  a  floating  security  will  have  priority  over  the 
debentures  {Brunton  v.  Electrical  Engineering  Corporation,  [1892]  1  Ch. 
434). 

The  solicitor  of  an  official  liquidator  has  no  lien  on  the  file  of  the 
proceedings  in  the  winding-up  and  the  documents  relating  thereto 
{Ex  parte  Pulhrook,  1869,  L.  R  4  Ch.  627);  nor  on  books  of  the 
company  which  ought  to  be  kept  at  the  registered  office  {In  re  Anglo- 
Maltese  Hydraulic  Dock  Co.,  1885,  54  L.  J.  Ch.  730).  As  to  compelling 
production  by  the  solicitor  of  documents  required  by  the  liquidator 
in  the  winding-up,  see  Companies  Act,  1862,  s.  115;  Ex  parte  Paine 
&  Layton,  1869,  L.  E.  4  Ch.  215  ;  In  re  Capital  Fire  Insurance  Associa- 
tion, 1883,  24  Ch.  D.  408;  and  as  to  the  lien  of  a  solicitor  employed 
by  a  trustee  in  bankruptcy,  see  Ex  parte  Yalden,  1876,  4  Ch.  D.  129. 
Production  by  the  client  may  be  ordered  though  his  solicitor  claims 
a  lien  {Bodick  v.  Gandell,  1847,  10  Beav.  270 ;  50  E.  R.  586 ;  76  R.  R. 
125  ;  Vale  v.  Oppert,  1875,  L.  R.  10  Ch.  340 ;  Lewis  v.  Powell,  [1897] 
1  Ch.  678);  nor  can  the  solicitor  set  up  his  lien  as  a  ground  for 
refusing  to  produce  documents  at  the  instance  of  third  parties  under 
a  subpcena  duces  tecum  {Hope  v.  Liddell,  1855,  20  Beav.  438 ;  52  E.  R. 
672 ;  7  De  G.,  M.  &  G.  331 ;  44  E.  R.  129 ;  Fowler  v.  Fowler,  1881, 
50  L.  J.  Ch.  686),  or  for  the  inspection  of  his  client's  trustee  in  bank- 
ruptcy {In  re  Toleman  &  England  ;  Ex  parte  Bramble,  1880,  13  Ch.  D. 
885 ;  see  ante,  p.  495) ;  and  the  right  to  inspect  includes  the  right  to 
take  copies  {Pratt  v.  Pratt,  1882,  47  L.  T.  249  ;  Mutter  v.  Eastern  and 
Midlands  Bly.  Co.,  1888,  38  Ch.  D.  92).  The  effect  on  the  lien  of  the 
determination  of  the  solicitor's  retainer  depends  upon  whether  he  was 
discharged  by  himself  or  by  his  client ;  as  to  what  amounts  in  each  case 
to  a  discharge,  see  ante,  p.  447. 

1.  If  the  solicitor  discharges  himself  the  client  has  a  right  to  the  con- 
venient access  to  his  papers  just  as  he  would  have  had  if  the  solicitor 
were  still  acting  for  him.  If  the  discharge  occurs  pendente  lite  the  new 
solicitor  is  entitled  to  all  the  papers  for  the  purposes  of  the  action,  but 
as  soon  as  that  action  is  at  an  end  the  lien  of  the  late  solicitor  revives, 
and  the  papers  cannot  be  touched  without  payment  of  his  bill.  For 
any  new  purpose  the  client  would  have  no  title  whatever.  The  same 
principle  applies  to  any  conveyancing  or  other  business  pending  at  the 
time  of  the  discharge — it  must  be  completed,  and  the  new  solicitor  will 
have  a  right  to  have  the  papers  for  that  purpose ;  but  as  soon  as  that 
business  is  completed  the  lien  of  the  former  solicitor  revives  {per  Wood, 
V.-C,  in  Bawlinson  v.  Moss,  1861,  7  Jur.  N.  S.  1053 ;  and  see  Bobins 
v.  Goldingham,  1872,  L.  R.  13  Eq.  440;  In  re  Faithfull,  1868,  L.  R. 
6  Eq.  325). 

2.  If  the  solicitor  is  discharged  by  the  client  he  has  a  lien  for  his  costs 
upon  the  papers  in  his  hands,  and  can  retain  them  till  he  is  satisfied 
{In  re  Faithfidl ;  Bozon  v.  Bolland,  1839,  4  Myl.  &  Cr.  354 ;  41  E.  R.  138 ; 
48  R.  R.  121).  But  even  in  that  case  he  will  not  be  allowed  to  obstruct 
the  course  of  the  Court  in  proceedings  for  administration,  partition, 
winding-up,  or  the  like,  in  which  third  parties  are  interested,  and  an 
VOL.  XIII.  32 

/ 


498  SOLICITOR 

order  will  be  made  for  production  or  delivery  of  all  necessary  papers, 
though  in  other  respects  without  prejudice  to  the  lien ;  and  when  the 
papers  are  done  with  they  will  be  returned  to  the  solicitor  (see  Belaney 
V.  Ffrench,  1873,  L.  R.  8  Ch.  918;  In  reBoughton,  Boughton  v.  Boughton, 
1883,  23  Ch.  D.  169  ;  In  re  Capital  Fire  Insurance  Association,  1883,  24 
Ch.  D.  408 ;  Baden  v.  Henshj,  [1892]  1  Ch.  101 ;  In  re  Hawkes,  Ackerman 
V,  Lockhart,  [1898]  2  Ch.  1).  On  payment  into  Court  of  the  amount 
claimed  by  the  solicitor,  an  order  may  be  obtained  for  delivery  of  the 
documents  (Bepuhlic  of  Costa  Rica  v.  Erlanger,  1879,  W.  IST.  7 ;  Newington 
Local  Board  v.  Eldridge,  1879, 12  Ch.  D.  349  ;  and  see  DuBoison  v.  Maxwell, 
1876,  W.  N.  146).  On  payment  of  the  costs  the  lien  ceases,  and  the 
solicitor  cannot  refuse  to  deliver  up  the  documents  on  the  ground  that 
third  parties  claim  an  interest  in  them  {In  re  Emma  Silver  Mining  Co.  ; 
In  re  Turner,  1875,  24  W.  R.  54). 

The  lien  will  be  excluded  by  the  papers  being  deposited  for  a  specific 
purpose,  and  so  as  not  to  be  subject  to  the  ordinary  lien,  but  there  must 
be  a  special  agreement  to  that  effect  (Colmer  v.  Ede,  1870,  23  L.  T.  884); 
or  the  lien  may  be  abandoned  by  the  solicitor  taking  a  security,  if  it 
appears  that  such  was  the  intention  {In  re  Taylor,  Stileraan  &  Underwood, 
[1891]  1  Ch.  590 ;  In  re  Douglas  Norman  &  Co.,  [1898]  1  Ch.  199).  But 
the  solicitor's  general  lien  is  not  affected  by  a  security  given  to  secure 
the  payment  of  particular  costs  {In  re  Morris,  [1908]  1  K.  B.  473). 

{b)  Lien  on  Judgment  or  Property  recovered  in  an  Action. — A  solicitor 
has  a  lien  for  his  taxed  costs  {De  Bay  v.  Griffin,  1875,  L.  R.  10  Ch.  291) 
on  a  judgment  obtained  by  him  for  his  client  {Welsh  v.  Hole,  1779, 
1  Doug.  237 ;  Wilson  v.  Hood,  1864,  3  H.  &  C.  p.  151),  and  on  any  money 
or  costs  which  become  payable  to  the  client  as  a  result  of  the  litigation 
{Hamer  v.  Giles,  1879,  11  Ch.  D.  p.  947  ;  Holcroft  v.  Manly,  1844,  8  Sco. 
N.  R.  473  ;  Ex  parte  Morrison,  1868,  L.  R.  4  Q.  B.  p.  156 ;  Stokes  on  Lien, 
p.  101 ;  Archbold's  Pr.,  p.  164).  It  is  immaterial  whether  the  money  is 
payable  under  a  judgment,  or  by  an  award  of  an  arbitrator  {Ormerod 
v.  Tate,  1801,  1  East,  464;  6  R.  R.  327),  or  under  a  compromise  {Ross 
V.  Button,  1889,  42  Ch.  D.  190).  But  he  has  no  lien  at  common  law  on 
real  estate  recovered  by  him  for  the  client  {Shaw  v.  Neale,  1858, 6  H.  L.  C. 
581 ;  10  E.  R.  1422).  The  lien  on  a  judgment  is  only  a  claim  or  right 
to  ask  for  the  intervention  of  the  Court  for  the  solicitor's  protection 
when,  having  obtained  judgment  for  his  client,  he  finds  there  is  a 
probability  of  the  client  depriving  him  of  the  costs  {Mercer  v.  Graves, 
1872,  L.  R.  7  Q.  B.  499).  But  the  lien  will  be  protected  by  the  Court, 
and  will  not  be  allowed  to  be  defeated  by  any  improper  arrangement 
behind  the  back  of  the  solicitor  {Ex  parte  Morrison,  ubi  supra). 

The  lien  on  a  judgment  or  property  recovered  in  an  action  differs 
from  the  lien  on  papers  in  two  respects — {a)  It  extends  only  to  the  costs 
of  the  particular  action  in  which  the  solicitor  has  been  employed  {Hall 
V.  Laver,  1842,  1  Hare,  571;  66  E.  R.  1158;  58  R.  R.  198;  Mackenzie 
V.  Mackintosh,  1891,  64  L.  T.  706);  (6)  but  on  the  other  hand  it  may  be 
actively  enforced,  either  by  action  {Sympson  v.  Prothero,  1857, 26  L.  J.  Ch. 
671),  or  ^Qiition  {White  v.  Pearce,  1848,  7  Hare,  276;  68  E.  R.  113),  or 
by  obtaining  a  stop  order  on  the  fund  if  in  Court  {Lucas  v.  Peacock,  1846, 
9  Beav.  177;  50  E.  R.  311),  or  by  restraining  the  client  from  receiving 
the  money  on  which  the  lien  attaches  until  the  solicitor's  bill  is  paid 
( Wilkins  v.  Carmichael,  1779,  1  Doug.  104 ;  Welsh  v.  Hole,  ibid.  238). 
If  the  person  liable  to  pay  under  a  judgment  pays  the  client  with  notice 
of  the  solicitor's  claim,  he  remains  liable  to  the  solicitor  (  White  v.  Pearce, 


I 


SOLICITOR  499 

supra) ;  and  as  to  the  priority  of  the  lien  over  claims  by  other  parties, 
see  Sympson  v.  Prothero,  supra  ;  The  Jeff  Davis,  1867,  L.  R,  2  Ad.  &  Ec.  1 : 
The  Leader,  1868,  ibid.  314 ;  Haymes  v.  Cooper,  1864,  33  Beav.  431 ; 
55  E.  E.  435.  The  solicitor  cannot  set  up  the  lien  as  against  persons 
whose  claims  are  paramount  to  those  of  the  client  {Francis  v.  Francis, 
1854,  5  De  G.,  M.  &  G.  108 ;  43  E.  E.  811 ;  Verity  v.  Wilde,  1859,  4  Drew. 
427  ;  62  E.  E.  164). 

The  lien  is  confined  to  the  ultimate  balance  coming  to  the  client 
{Verity  Y.  Wilde,  supra;  Chick  v.  Nicholls,  1878,  26  W.  E.  231).  It  is 
not  allowed  to  interfere  with  any  compromise  or  arrangement  entered 
into  by  the  client  honestly  and  hondfde  {Brunsdonv.  Allard,  1859,  2  El. 
&  El.  19;  Boss  V.Buxton,  1889,  42  Ch.  D.  190;  Price  v.  Crouch,  1891,  60 
L.  J.  Q.  B.  767;  In  re  Margetson  &  Jones,  [1897]  2  Ch.  314;  Tlie  Hope, 
1883, 8  P.  D.  144),  or  with  any  right  of  set-off  which  any  other  party  may 
have  against  the  client  {Cattell  v.  Simons,  1843,  6  Beav.  304 ;  49  E.  E.  843 ; 
63  E.  E.  82 ;  Bobartsv.  Bude,  1878,  8  Ch.  D.  198 ;  Pringle  v.  Gloag,  1879, 
10  Ch.  D.  676) ;  and  see  Order  65,  r.  14,  which  does  not  apply,  however, 
to  costs  in  distinct  and  independent  proceedings  {Hassell  v,  Stanley,  [1896] 
1  Ch.  607;  Blakey  v.  Latham,  1889,  41  Ch.  D.  518;  Edwards  v.  Hope, 
1885,  14  Q.  B.  D.  922 ;  David  v.  Bees,  [1904]  2  K.  B.  435),  even  though 
they  are  subsequently  consolidated  {Bake  v.  French,  [1907]  1  Ch.  428). 

The  lien  is  not  lost  by  the  death  of  the  client  {Lloyd  v.  Mason,  1845, 
4  Hare,  132),  or  by  the  solicitor  taking  him  in  execution  under  an 
attachment  {Batvtree  v.  Watson,  1838,  2  Keen,  713 ;  48  E.  E.  804 ;  Lloyd 
v.  Mason,  supra),  or  a  ca.  sa.  {O'Brien  v.  Lewis,  1863,  2  N.  E.  536). 

If  the  solicitor  is  discharged  by  the  client  pendente  lite  he  does  not 
lose  his  lien  entirely  {Cormack  v.  Beisly,  1858,  3  De  G.  &  J.  157 ;  44  E.  E. 
1229) ;  but  as  between  himself  and  the  solicitor  subsequently  employed 
the  latter  has  priority  {Cormack  v.  Beisly,  supra ;  In  re  Wadsworth,  Bhodes 
V.  Sugden,  1885,  29  Ch.  D.  517  ;  S.  C,  1886, 34  Ch.  D.  155 ;  In  re  Knight, 
Knight  v.  Gardner,  [1892]  2  Ch.  368);  and  see,  further,  as  to  the  effect 
of  a  change  of  solicitors,  Mornington  v.  Wellesley,  1857,  4  Jur.  N.  S.  6 ; 
Armstrong  v.  Storer,  1859,  27  Beav.  471 ;  54  E.  E.  187. 

As  between  a  country  solicitor  and  his  town  agent,  the  latter's  lien 
extends  to  all  costs  for  all  agency  business  and  disbursements  due  to  him 
from  the  former ;  but  as  between  the  client  and  the  agent,  the  latter's 
lien  only  extends  to  the  costs  of  the  particular  suit  {Lawrence  v.  Fletcher, 
1879,  12  Ch.  D.  858  ;  and  see  Jeyes  v.  Jeyes,  1876,  45  L.  J.  Ch.  245 ;  Ex 
parte  Edwards,  1881,  7  Q.  B.  D.  155;  8  Q.  B.  D.  262;  In  re  Jones  & 
Boberts,  [1905]  2  Ch.  219). 

(iv.)  Charging  Order  for  Costs  under  the  Solicitors  Act,  1860. — By  the 
Sol.  Act,  1860,  s.  28,  in  any  case  in  which  a  solicitor  is  employed  to 
prosecute  or  defend  any  proceeding  in  any  Court,  the  Court  before  whom 
the  proceeding  has  been  heard,  or  is  depending,  may  declare  him  entitled 
to  a  charge  upon  the  property  recovered  or  preserved ;  and  upon  such 
declaration  being  made  the  solicitor  will  have  a  charge  upon  and  a  right 
to  payment  out  of  the  property  recovered  or  preserved  through  his 
instrumentality  for  the  taxed  costs  of  such  proceeding ;  and  the  Court 
may  make  such  order  for  taxation  of  and  for  raising  and  payment  of 
such  costs  out  of  the  property  as  it  thinks  just,  and  all  conveyances  and 
acts  done  to  defeat  the  charge  will,  unless  made  to  a  bond  fide  purchaser 
for  value  without  notice,  be  void  as  against  the  charge ;  but  no  order 
can  be  made  if  the  right  to  recover  payment  of  the  costs  is  barred  by 
any  Statute  of  Limitations.     The  Court  has  a  discretion  as  to  granting 

/ 


500  SOLICITOE 

or  refusing  an  order  under  the  Act  {In  re  H^Lmphreys,  [1898]  1  Q.  B. 
520 ;  Greer  v.  Young,  1883,  24  Ch.  D.  545 ;  Harrison  v.  Harrison,  1888, 
13  P.  D.  180 ;  In  re  Born,  [1900]  2  Ch.  433).  The  charge  is  independent 
of  contract,  and  may  be  made  on  the  interests  of  persons,  who  did  not 
employ  the  solicitor  and  were  not  parties  to  the  action,  provided  they 
adopt  the  benefit  of  it  {Greer  v.   Young,  supra;   Charlton  v.  Charlton, 

1883,  52  L.  J.  Ch.  971);  the  solicitor's  right,  in  fact,  is  that  of  a  salvor 
{Scholey  V.  Peck,  [1893]  1  Ch.  709;  Bulky  v.  Bulky,  1878,  8  Ch.  D.  479 ; 
Bidd  V.  Thorne,  [1902]  2  Ch.  344).  The  client,  however,  is  the  person 
primarily  liable  for  the  costs,  and  the  interests  of  other  persons  will  only 
be  charged  by  way  of  collateral  security  {Jackson  v.  Smith ;  Ex  parte 
Dighy,  1884,  53  L.  J.  Ch.  972;  Harrison  v.  Cornwall  Minerals  Ely.  Co., 

1884,  53  L.  J.  Ch.  596).  The  lien  is  not  personal  to  the  solicitor,  but 
extends  to  his  personal  representatives  {Baile  v.  Baik,  1872,  L.  K.  13  Eq. 
497);  and  the  assignee  of  the  solicitor  may  obtain  an  order  {Briscoe  v. 
Briscoe,  [1892]  3  Ch.  453).  No  charge  can  be  given  in  favour  of  town 
agents,  as  they  are  not  the  solicitors  employed  by  the  client  {Macfarlane 
V.  Lister,  1887,  37  Ch.  D.  88) ;  nor  for  the  costs  of  an  arbitration,  as  it  is 
not  a  proceeding  in  a  Court  of  Justice  {ibid.,  and  see  In  re  Humphreys,  uhi 
supra),  and  a  solicitor  who  accepts  a  mortgage  from  his  client  loses  his 
right  to  a  charging  order  {Groom  v.  Cheesewright,  [1895]  1  Ch.  730 ;  and 
see  In  re  Douglas  Norman  &  Co.,  [1898]  1  Ch.  199). 

As  to  the  meaning  of  the  words  "  property  recovered  or  preserved," 
see  Foxon  v.  Gascoigne,  1874,  L.  R.  9  Ch.  pp.  657,  660.  They  include  a 
chose  in  action  {Birchall  v.  Pugin,  1875,  L.  R.  10  C.  P.  397),  and  costs 
payable  under  a  judgment  in  favour  of  the  client  {Dalloiv  v.  Garrold, 
1884,  14  Q.  B.  D.  543),  but  not  an  easement  {Foxon  v.  Gascoigne),  nor  an 
allowance  out  of  a  lunatic's  estate  {In  re  Rohinson,  1884,  27  Ch.  D.  160), 
nor  alimony  {Leete  v.  Leete,  1879,  48  L.  J.  P.  &  D.  61).  Property  has 
been  held  to  be  recovered  or  preserved  where  a  receiver  had  been 
appointed  in  the  action  {Twynam  v.  Porter,  1870,  L.  R.  11  Eq.  181 ;  Baile 
V.  Baile,  1872,  L.  R.  13  Eq.  507);  where  property  had  been  managed  and 
retained  for  the  rightful  owners  {In  re  Turner,  [1907]  2  Ch.  126,  539); 
where  a  mortgagee  obtained  a  foreclosure  decree  ( W^zYsou  v.  Round,  1863, 
4  Gif.  416 ;  and  see  Schokfield  v.  Lockwood,  1868,  L.  R.  7  Eq.  83 ;  Jones  v» 
Frost,  In  re  Fiddey,  1872,  L.  R.  7  Ch.  773) ;  where  land  was  recovered  in 
ejectment  {Wilson  v.  Hood,  1864,  33  L.  J.  Ex.  204) ;  where  judgment  was 
recovered  in  an  action  of  detinue,  and  the  proceeds  of  the  goods  were 
subsequently  paid  into  Court  in  an  administration  suit  {Catlow  v.  Catlow, 
1877,  2  C.  P.  D.  362);  where  the  defendant  paid  money  into  Court 
{Clover  V.  Adams,  1881,  6  Q.  B.  D.  622;  Moxon  v.  Sheppard,  1890,  24 
Q.  B.  D.  627) ;  where  money  was  paid  by  way  of  compromise  {Ross  v. 
Buxton,  1889,  42  Ch.  D.  190;  The  Paris,  [1896]  P.  77);  where  an  order 
was  made  under  the  Declaration  of  Titles  Act  {Pritchard  v.  Roberts,  1873, 
L.  R.  17  Eq.  222) ;  where  the  validity  of  a  will  was  established  in  a 
probate  action  {Fx  parte  Tweed,  [1899]  2  Q.  B.  167);  where  the  assets  of 
a  company  were  saved  on  a  scheme  for  winding-up  and  reconstruction 
{In  re  John  Clayton,  ltd.,  1905,  92  L.  T.  223);  and  where  costs  which 
had  been  paid  under  an  order  of  the  Court  below  were  ordered  by  the 
Court  of  Appeal  to  be  refunded  {Giiy  v.  Churchill,  1887,  35  Ch.  D.  489). 
A  solicitor  is  entitled  to  a  charging  order  for  the  difference  between  party 
and  party  and  solicitor  and  client  costs  which  the  plaintiff  is  unable  to 
pay  {In  re  W.  C.  Home  &  Sons,  [1906]  1  Ch.  271). 

Where,  however,  there  has  been  no  real  "  recovery  or  preservation  "" 


SOLICITOR  501 

of  property,  e.g.  money  paid  into  Court  as  security  for  costs,  and  which 
subsequently  becomes  repayable  by  reason  of  the  party  succeeding  {In  re 
Wadsworth,  1885, 29  Ch.  D.  517),  or  money  paid  into  Court  with  a  denial  of 
liability  and  counterclaim  for  damages  {Westacott  v.  Bevan,  [1891]  1  Q.  B. 
774),  or  where  further  proceedings  in  an  administration  suit  were  stopped 
after  the  decree  had  been  made  and  the  accounts  brought  in  (Pinkerton  v. 
Easton,  1873,  L,  E.  16  Eq.  490),  no  charge  can  be  given  (and  see  also 
Roivlands  v.  Williams,  1885,  W.  N.  194;  53  L,  T.  N.  S.  135;  Lloyd  v.  Jones, 
1879,  27  W.  R.  655 ;  Pierson  v.  Knutsford  Estates  Co.,  1884,  13  Q.  B.  D. 
666 ;  The  Birnam  Wood,  [1907J  P.  1). 

The  order  for  a  charge  may  be  made  either  on  summons  {Hamer  v. 
Giles,  1879,  11  Ch.  D.  942;  Clover  v.  Adams,  1881,  6  Q.  B.  D.  622),  or 
petition  {Brown  v.  Trotman,  1879,  12  Ch.  D.  880),  and  should  be  made 
in  the  branch  of  the  Court  to  which  the  action  is  attached,  and  may  be 
made  though  the  action  is  at  an  end  {Heinrich  v.  Sutton,  1871,  L.  R.  6  Ch. 
865 ;  Jones  v.  Frost,  In  re  Fiddey,  1872,  L.  R.  7  Ch.  773).  It  may  be 
made  by  any  judge  of  the  Division  in  which  the  matter  was  heard  and 
not  necessarily  by  the  judge  who  tried  the  case  {In  re  Deahin,  [1900] 
2  Q.  B.  489 ;  but  see  Owen  v.  Hemhaw,  1877,  7  Ch.  D.  385 ;  Higgs  v. 
Schrader,  1878,  3  C.  P.  D.  252) ;  and  should  be  limited  to  costs  properly 
incurred  {Emden  v.  Carte,  1881,  19  Ch.  D.  311);  it  should  not  as  a  rule 
he  mside  ex  parte  {The  Birnam  Wood).  The  judge  in  bankruptcy  being 
a  judge  of  the  High  Court,  or  his  registrar,  may  make  an  order  under  the 
Act  {In  re  Wood;  Ex  parte  Fanshawe,  [1897]  1  Q.  B.  314),  though  there  is 
no  power  to  make  an  order  in  the  exercise  of  the  jurisdiction  in  bank- 
ruptcy {In  re  Siofjield  &  Watts ;  Ex  parte  Brown,  1888,  20  Q.  B.  D.  693 ; 
and  see  In  re  Cook,  [1899]  1  Q.  B.  863) ;  in  In  re  Deakin,  however,  it  seems 
to  have  been  considered  that  a  judge  in  bankruptcy  might  make  an  order 
even  though  he  did  not  happen  to  be  a  judge  of  the  High  Court.  Any 
application  to  discharge  an  order  under  the  Act  should  be  made  promptly 
{In  re  Deakin). 

So  long  as  a  fund  on  which  a  charging  order  has  been  made  has  not 
been  paid  away,  the  order  is  effectual  against  everyone  except  a  bond 
fide  purchaser  for  value  without  notice  {In  re  Suffield  &  Watts;  Ex 
parte  Brown,  1888,  20  Q.  B.  D.  p.  696,  per  Lord  Esher,  M.R.).  Thus, 
the  lien  has  priority  over  all  charges  created  by  the  client  {Ilaymes  v. 
Cooper,  1864,  33  Beav.  431 ;  The  Heinrich,  1872,  L.  R.  3  Ad.  &  Ee.  505), 
even  though  he  may  have  assigned  his  interest  with  the  knowledge  of 
the  solicitor  {Pitcher  v.  Arden,  1877,  7  Ch,  D.  318),  who  is  under  no 
obligation  to  give  notice  to  an  intending  assignee  {Faithfull  v.  Ewen, 
1878,  7  Ch.  D.  495;  Cole  v.  Eley,  [1894]  2  Q.  B.  188,  350;  The  Paris, 
[1896]  P.  77;  MLarnon  v.  CarHckfergus  U.  D.  C,  [1904]  2  Ir.  R.  44); 
but  notice  by  the  plaintiffs  solicitor  will  prevent  the  defendant  paying 
money  to  the  plaintiff  under  a  compromise  to  the  prejudice  of  the 
solicitor  {Boss  v.  Buxton,  1889,  42  Ch.  D.  190).  If  an  infant  compromise 
an  action  with  the  sanction  of  the  Court  the  order  need  not  reserve  the 
lien,  which  remains  unaffected  {In  re  Wright's  Tmsts,  [1901]  1  Ch.  317). 
So  an  order  under  the  Act  will  have  priority  over  a  garnishee  order 
previously  obtained  but  not  served  {Hamer  v.  Giles,  1879,  11  Ch.  D. 
942;  Shipley  v.  Grey,  1880,  49  L.  J.  C.  P.  524;  Dallow  v.  Garrold,  1884, 
14  Q.  B.  D.  543 ;  see,  however,  North  v.  Stewart,  1890, 15  App.  Cas.  452) ; 
and  over  debenture  holders  {In  re  Pelsall  Coal  Co.,  1892,  8  T.  L.  R.  629). 
As  to  the  effect  of  an  order  on  a  right  of  set-off,  see  Goodfelloio  v.  Gray 
[1899]  2  Q.  B.  498.     The  solicitor  does  not  lose  the  right  to  an  order 


1  I 


502  SOLICITOE-GENEEAL 

because  he  has  been  discharged  {In  re  Wadsworth,  1886,  34  Ch.  D.  155), 
or  has  discharged  himself  {Clover  v.  Adams,  1881,  6  Q,  B.  D.  622) ;  but 
as  between  several  successive  solicitors  employed  in  an  action,  the  one 
last  employed  is  entitled  to  a  charge  in  priority  to  his  predecessors 
(CormacJc  v.  Beisly,  1858,  3  De  G.  &  J.  157 ;  44  E.  E.  1229  ;  In  re 
Wadsworth,  1886,  34  Ch.  D.  155 ;  In  re  Knight,  [1892]  2  Ch.  368). 

[^Authorities. — Cordery  on  Solicitors,  1899 ;  Fowke  and  Henderson, 
Partnership  hetween  Solicitors,  1894;  Clerke  and  Brett,  Solicitors'  Be- 
inuneration  Act,  3rd  ed.,  1889 ;  Atkinson,  Solicitors'  Liens  and  Charging 
Orders,  1905  ;  Morgan  and  Wurtzburg  on  Costs ;  Foley  on  Solicitors.] 

Solicitor-General. — The  Solicitor-General  is  one  of  the  law 
officers  of  the  Crown,  and  is  appointed  by  letters  patent.  He  is  not  a 
member  of  the  Cabinet ;  but  is  a  Minister  of  the  Crown,  and  a  member 
of  the  House  of  Commons,  and  the  duration  of  his  office  depends  upon 
the  continuance  in  power  of  the  party  to  which  he  belongs.  He  is  an 
ex  officio  member  of  the  General  Council  of  the  Bar.  His  duties  are 
substantially  the  same  as  those  of  the  Attorney-General  {q.v.),  to  whom 
he  is  subordinate.  He  has  full  power  to  represent  the  Crown  in  the 
absence  of  the  Attorney-General ;  and  the  whole  business  and  authority 
of  the  Attorney-General  during  a  vacancy  in  his  office  devolve  upon  the 
Solicitor-General  {E.  v.  Wilkes,  1770,  4  Burr.  2554).  The  Solicitor- 
General  is  not,  under  the  regulations  at  present  in  force,  permitted  to 
take  private  practice ;  but  he  is  entitled  to  receive  fees,  in  addition  to 
his  salary  as  Solicitor-General,  in  respect  of  any  contentious  proceedings 
in  which  he  appears  on  behalf  of  the  Crown. 

Where  the  Solicitor- General  conducts  a  public  prosecution  on  behalf 
of  the  Crown,  he  has,  like  the  Attorney-General,  a  right  of  reply, 
although  no  evidence  is  adduced  on  the  part  of  the  defendant  (see 
Eeply,  Eight  of). 

See  Attorney-General. 

Solitary  Confinement. — In  many  statutes  of  last  century 
power  was  given  to  Courts  of  justice  to  sentence  persons  convicted  to 
solitary  confinement  during  part  of  any  period  of  imprisonment  lawfully 
imposed.  Courts  ceased  to  exercise  the  power  in  consequence  of  the 
Prison  Act,  1865,  28  &  29  Vict.  c.  126,  under  which  (s.  17)  imprison- 
ment in  separate  cells,  and  prevention  of  communication  with  other 
prisoners,  is  prescribed  as  a  rule  for  prison  treatment ;  and  most,  if  not 
all,  of  the  enactments  authorising  Courts  to  include  solitary  confinement 
as  part  of  the  sentence  were  repealed  in  1892,  55  &  56  Vict.  c.  19  ;  and 
1893,  56  &  57  Vict.  c.  54,  s.  1,  schedule). 

Solomon  Islands. — See  Pacific  Islands. 

Somali  land  Protectorate. — Area  and  History. — The 
British  Protectorate  of  Somaliland  is  bounded  by  the  Gulf  of  Aden, 
the  Protectorates  of  Italy  {q.v.),  the  Empire  of  Ethiopia  {q.v.),  and  the 
Jibuti  Protectorate  of  France  {q.v.),  and  covers  an  area  of  68,000 
square  miles  or  about  the  size  of  Scotland,  Ireland  and  Wales  together. 

The  protectorate  is  of  recent  date,  as  it  was  only  in  1884  that 
Egyptian  control  came  to  an  end  and  Great  Britain  formally  declared  a 
protectorate  over  the  territory.  Until  the  end  of  1898  the  territory  was 
administered  by  the  Eesident  at  Aden,  as  a  dependency  of  the  Govern- 


so  NEAE  THEEEUNTO  AS  SHE  MAY  SAFELY  GET     503 

ment  of  India,  but  in  that  year  it  was  transferred  to  the  charge  of  the 
Foreign  Office,  and  on  April  1,  1905,  was  taken  over  by  the  Colonial 
Office.  By  arrangements  with  Italy  in  1894,  and  with  Abyssinia  in  1897, 
the  boundaries  were  delimited  and  15,000  square  miles  were  ceded  to 
Abyssinia  by  the  latter  arrangement.  Early  in  1901  trouble  was 
caused  in  the  protectorate  by  a  Somali  leader,  the  Mullah  Mohammed 
Abdullah,  and  military  operations  ensued,  which  did  not  come  to  an 
end  until  March  1905,  when  by  an  agreement  concluded  between  Italy 
and  the  Mullah  peace  was  restored,  and  the  Mullah  placed  himself 
under  the  protection  of  Italy,  and  was  given  certain  territories  in 
Italian  Somaliland  beyond  which  he  undertook  not  to  encroach. 

Administration  Laws  and  Law  Conrts. — The  protectorate  is  adminis- 
tered under  the  Somaliland  Orders  in  Council  1899,  1903,  1904,  and 
1906  (St.  E.  &  0.,  Eev.  1904,  vol.  v., "  Foreign  Jurisdiction,"  pp.  173-188 ; 
St.  E.  &  0.,  1904,  p.  189 ;  St.  E.  &  0.,  1906,  p.  222).  The  administra- 
tion is  in  the  hands  of  a  Commissioner  (1904  Order,  Art.  3)  who  acts 
under  Orders  in  Council,  under  instructions  under  His  Majesty's  Sign 
Manual,  and,  since  1905,  under  the  Colonial  Office,  and  has  all  the 
powers  which  under  the  Orders  in  Council  of  1899  and  1903  were 
formerly  in  the  Consul-General.  The  Commissioner  legislates  by 
Ordinance,  has  jurisdiction  over  British  subjects,  protected  persons, 
foreigners  and  natives,  as  well  as  over  foreign  ships  according  to  the 
practice  of  the  High  Court  of  England,  and  in  him  Crown  lands  are 
vested.  The  Indian  Penal  Code  and  the  Codes  of  Civil  and  Criminal 
Procedure,  and  various  other  Indian  Acts  apply.  As  regards  criminal 
matters,  these  Acts  apply  as  if  the  protectorate  were  a  Presidency  of 
India,  and  the  Protectorate  Court  has  for  criminal  purposes  all  the 
powers  of  a  Session  Court  in  India.  Appeals  from  the  Protectorate 
Court  lie  to  His  Majesty  in  Council,  and  are  regulated  by  Art.  23  of  the 
Order  of  1899.  The  Order  of  1903  (ibid.,  p.  188)  provides  that  the 
Commissioner  may  act  as  a  consular  officer  under  the  Merchant  Shipping 
Acts,  and  an  Order  in  Council  of  July  4,  1908  (St.  E.  &  0.,  1908,  No. 
559),  authorises  the  District  Officer  at  Berbera  to  take  seamen's  deposi- 
tions under  sec.  7  of  the  "Workmen's  Compensation  Act,  1906.  By 
Treasury  Determination  of  June  26,  1907  (St.  E.  &  0.,  1907,  p.  864), 
the  revenues  of  the  protectorate  have  been  declared  to  be  public  funds, 
within  sec.  4  of  55  &  56  Vict.  c.  40.     (See  Colonial  Office  List.) 

So  near  thereunto  as  she  may  safely  get.— This 

is  a  clause  generally  added  in  charter-parties  to  the  name  of  the  port 
or  part  of  the  port  to  which  the  ship  is  destined,  either  for  loading  or 
discharging ;  and  it  comes  into  efifect  when  the  ship  is  prevented  by  an 
obstruction  of  a  permanent  character  in  or  near  the  port  from  reaching 
her  destination ;  or  although  the  obstacle  is  not  of  a  permanent  kind  nor 
a  physical  one,  if  the  obstacle  could  not  be  overcome  by  the  shipowner 
by  any  reasonable  means,  except  within  such  a  time  as,  having  regard 
to  the  objects  of  the  adventure  of  both  charterer  and  shipowner,  is  as  a 
matter  of  business  wholly  unreasonable  (Brett,  L.J.,  Nelson  v.  Dahl,  1879, 
12  Ch.  D.  568,  593;  6  App.  Cas.  38);  and  the  ship  is  then  an  arrived 
ship,  and  the  lay  days  begin  (see  Demurrage).  But  if  the  obstruction 
is  only  temporary,  and  A  fortiori  if  it  is  also  at  a  distance  from  the 
port,  the  shipowner  should  wait  till  it  is  removed,  and  if  he  refuses  to 
do  so  he  is  liable  in  damages  to  the  charterer  (Schilizzi  v.  Berry,  1855, 
24  L.  J.  Q.  B.  193 ;  Metcalfe  v.  Britannia  Iron  Works  Co.,  1876,  2  Q.  B.  D. 


504  SOON  AS  POSSIBLE 

423).  The  words  relate  to  safety  in  getting  away  from,  as  well  as  in 
entering,  the  port  {Shield  v.  Wilkins,  1850,  19  L.  J.  Ex.  238).  Where  a 
ship  is  chartered  to  proceed  to  "  a  safe  port  as  ordered,  or  as  near  there- 
unto as  she  can  safely  get,  and  always  lay  and  discharge  afloat,"  she  is  not 
bound  to  discharge  at  a  port  where  she  cannot  by  reason  of  her  draught 
of  water  always  lie  and  discharge  afloat  without  being  lightened,  even 
though  she  can  be  lightened  with  reasonable  despatch  and  safety  quite 
near  the  named  port  {The  AlJiamhra,  1881,  6  P.  D.  68 ;  and  see  Jaques 
V.  Wilson,  1890,  7  T.  L.  E.  119 ;  NoheVs  Explosive  Co.  v.  Jenkins,  1896, 
2  C.  C.  436,  where  the  named  port  (with  this  clause  added)  was  not 
politically  safe).  But  if  a  particular  port  of  discharge  is  agreed  upon 
by  the  parties  or  orders  given  for  it  have  been  accepted,  the  shipowner 
may  be  bound  to  go  there,  although  this  involves  a  considerable  delay 
{Sailing  Ship  Milverton  v.  Cape  Town  Co.,  1897,  13  T.  L.  R.  548),  or 
lightening  his  ship  outside  the  port  {Hillstrom  v.  Gibson,  1870,  8  Sess. 
Ca.  (3rd)  463);  but  the  expense  of  lightening  will  generally  fall  upon 
the  charterer  {Hay ton  v.  Irwin,  1879,  5  C.  P.  D.  130 ;  Capper  v.  Wallace, 
1880,  5  Q.  B.  D.  163,  166;  and  see  generally  Carver,  Carriage  hy  Sea, 
4th  ed.,  1905,  ss.  225,  226,  453  et  seg. ;  and  Always  Afloat).  As  to  lay 
days  under  such  a  clause,  see  Demuerage. 

Soon  as  possible. — A  contract  to  supply  an  article,  or  to 
do  some  particular  thing  "  as  soon  as  possible,"  means  that  the  article  is 
to  be  supplied,  or  the  thing  done,  within  the  shortest  practicable  time 
{Hydraulic  Engineering  Co.  v.  M'HaJfie,  1878,  4  Q.  B.  D.  670),  regard 
being  had,  however,  in  the  case  of  a  contract  to  supply  goods  "  as  soon 
as  possible"  to  the  manufacturer's  ability  to  produce  them  and  the 
orders  he  may  already  have  in  hand  {Attwood  v.  Emery,  1856,  1  C.  B. 
N.  S.  110). 

Sorcery. — See  Witchcraft. 

Soudan.— See  Sudan. 

Sounding'  in  Damages. — An  action  was  said  to  "sound 
in  damages  "  when  no  specific  sum  or  thing  was  claimed,  as  in  debt  or 
detinue,  but  damages  only  as  for  a  trespass. 

Soup. — At  certain  Assizes  and  Quarter  Sessions  it  is  the  practice 
to  make  a  list  of  the  cases  not  privately  prosecuted,  and  to  distribute 
the  briefs  in  rotation  among  the  counsel  who  are  members  of  the  bar  or 
sessions  mess,  and  regularly  attend  the  Court.  The  briefs  so  delivered 
are  described  as  soup. 

South  Africa. — See  Africa. 

South  Australia. — Area. — South  Australia,  one  of  the  States 
of  the  Commonwealth  of  Australia  {q.v.),  is  situated  between  the  State 
of  Western  Australia  {q.v.)  and  the  three  eastern  States  of  Queens- 
land, New  South  Wales,  and  Victoria  {q.v.),  has  hitherto  embraced 
the  whole  central  portion  of  the  continent.  But  by  the  surrender  to 
the  Commonwealth  (see  below)  of  the  Northern  Territory  and  the  island 
dependencies  of  Kangaroo,  Nuyts  Archipelago,  and  the  Gambier,  Melville 
and  Bathurst,  Groote  Eylandt,  the  Pellew  Archipelago,  and  numerous 


SOUTH  AUSTRALIA  505 

others,  the  area  of  the  State  will  be  reduced  from  903,690  square  miles, 
or  more  than  seven  times  as  large  as  the  United  Kingdom,  to  380,070 
square  miles,  or  to  an  area  little  larger  than  New  South  Wales  {q.v.). 

Earlier  Hidory. — In  1834  the  South  Australian  Company  was 
formed  under  4  &  5  Will.  iv.  c.  95,  the  next  year  a  Colonisation  Com- 
mission for  South  Australia  was  appointed  {London  Gazette,  May  5, 1835, 
p.  877),  and  by  Letters  Patent  of  February  19,  1836,  the  territory  was 
constituted  a  British  province  under  the  name  of  "South  Australia." 
The  first  settlements  were  formed  in  Kangaroo  Island  and  Adelaide. 
Further  powers  were  given  by  an  Act  of  1838  (1  &  2  Vict.  c.  60).  Both 
the  1834  and  the  1838  Acts  were  repealed  by  the  South  Australia  Act, 
1842,  5  &  6  Vict.  c.  61,  which  repealed  the  1834  Act,  which  (s.  4)  pro- 
hibited the  importation  of  convicts.  In  1851  a  partially  elective  Legis- 
lative Council  was  established  under  the  Australian  Constitutions  Act, 
1850,  13  &  14  Vict.  c.  59.  Finally,  in  1856  responsible  government 
under  the  Act  of  1850  was  given  to  South  Australia  by  Order  in  Council 
of  June  24,  1856  (St.  R.  &  0.,  Rev.  1904,  vol.  L,  "  Australia,  Common- 
wealth of,"  p.  26),  assenting  to  the  Colonial  Act,  19  &  20  Vict.  No.  2. 

Alterations  in  Boundaries. — The  boundaries  of  the  State  were 
originally  fixed  by  4  &  5  Will.  iv.  c.  95.  By  24  &  25  Vict.  c.  44,  s.  1, 
the  territory  known  as  "No  Man's  Land,"  lying  between  South  and 
Western  Australia,  as  well  as  part  of  the  Northern  Territory  taken 
from  New  South  Wales,  were  added  to  South  Australia.  Under  Letters 
Patent  of  July  6,  1863  (ibid.,  p.  27),  the  boundaries  of  New  South  Wales 
and  South  Australia  were  adjusted,  and  the  rest  of  the  Northern  Terri- 
tory was  annexed  to  the  latter  colony.  By  Order  in  Council  of  March 
19,  1908,  a  South  Australian  Bill  providing  for  the  surrender  of  the 
Commonwealth  of  the  Northern  Territory  was  assented  to. 

Constitution. — The  present  Constitution  dates  from  October  24, 1856 
(see  above),  and  is  regulated  by  Act  19  &  20  Vict.,  No.  2,  as  subsequently 
amended  by  further  Colonial  Acts.  By  Letters  Patent  of  October  29, 
1900  (ibid.,  p.  28),  the  office  of  Governor  of  the  State  of  South  Australia 
and  its  dependencies  in  the  Commonwealth  of  Australia  was  reconsti- 
tuted and  provision  made  for  the  Executive  Council.  The  Executive 
authority  is  vested  in  the  Governor  (appointed  by  the  Crown)  and  the 
Executive  Council,  composed  of  four  responsible  ministers  and  the  Chief 
Justice  of  the  Supreme  Court.  The  legislative  power  is  in  a  Parliament 
of  two  Houses — a  Legislative  Council  and  a  House  of  Assembly. 

Legislative  Council. — By  Act  779  of  1901  the  Legislative  Council 
,  consists  of  eighteen  members.  There  are  four  electoral  districts  of  the 
Legislative  Council,  viz.,  the  Central,  Southern,  North-Eastern,  and 
Northern,  the  first  returning  six  members  and  the  others  four  members 
each.  The  severance  of  the  Northern  Territory  will  call  for  modifica- 
tions in  the  number  of  members  and  in  the  constituencies.  Members 
of  the  Legislative  Council  must  be  thirty  years  of  age,  natural-born  or 
naturalised  citizens,  and  resident  in  the  State  for  three  years;  they 
receive  an  annual  allowance  and  a  free  pass  over  Government  railways, 
and  must  hold  their  seats  for  six  years  at  least.  Triennially  half  the 
representatives  of  each  district  whose  names  are  first  on  the  roll  retire, 
their  places  being  taken  by  new  members.  In  the  event  of  the  Council 
twice  rejecting  a  Bill  twice  passed  by  the  House  of  Assembly,  a  dissolu- 
tion having  intervened,  provision  was  made  for  a  penal  dissolution  of 
the  Council,  or  the  addition  of  new  members,  but  this  provision  is  per- 
missive and  not  compulsory.     Ten  members,  including  the  President, 


506  SOUTH  AUSTEALIA 

form  a  quorum  of  the  Council.  The  electorate  for  the  Legislative 
Council  consists  of  voters,  male  and  female,  of  twenty-one  years  of  age, 
natural-born  or  naturalised  subjects,  having  their  names  on  the  electoral 
roll  for  six  months,  and  possessed  of  either  freehold  property  of  the 
value  of  £50  or  of  leasehold  of  the  annual  value  of  £20,  with  at  least 
three  years  to  run,  or  with  a  right  of  purchase,  or  occupying  a  dwelling- 
house  of  the  annual  rent  value  of  £25. 

House  of  Assembly. — The  members  of  the  House  of  Assembly  (who 
under  Act  779  of  1901  number  forty-two)  are  elected  for  three  years, 
and  receive  an  annual  allowance  and  a  free  pass  on  Government  rail- 
ways ;  they  must  be  qualified  and  entitled  to  be  registered  as  electors. 
The  qualifications  of  an  elector  are  the  same  as  those  of  the  electorate 
for  the  Legislative  Council,  save  that  there  is  no  property  qualification. 
There  are  twelve  districts  for  electoral  purposes,  of  which  nine  return 
three  members  each,  two  return  four  members  each,  and  one  returns  five 
members ;  the  severance  of  the  Northern  Territory  (which  has  hitherto 
returned  two  additional  members)  may  cause  modifications  in  the  number 
of  members  and  in  the  constituencies. 

For  comparison  with  the  constitution  of  the  Parliaments  of  the  other 
Commonwealth  States,  and  with  the  electoral  franchises  thereof,  see 
article  New  South  Wales.  The  provision  as  to  the  reservation  of  Bills 
for  His  Majesty's  pleasure,  and  as  to  the  Governor's  assent  or  dissent  to 
Bills  and  their  subsequent  disallowance  by  Order  in  Council  (which  are 
common  to  all  the  six  States),  are  described  in  that  same  article. 

Local  Government. — For  the  purposes  of  local  administration  there 
are  thirty-two  municipalities  and  143  district  councils.  The  "  Municipal 
Corporations  Act,  1890,"  regulates  the  municipalities,  which  consist  of 
a  mayor,  aldermen,  and  councillors  elected  by  the  ratepayers,  who  also 
elect  auditors.  The  Council  has  power  to  levy  rates  for  municipal  pur- 
poses on  all  houses  and  landed  property  within  the  municipal  area. 
The  District  Councils  have  very  similar  powers.  The  arrangements  for 
the  local  administration  of  the  Northern  Territory  are  undergoing 
modification. 

Laws. — The  laws  of  the  State  are  English  in  their  origin ;  the  local 
Eeal  Property  Act  provides  for  the  cheap  and  expeditious  transfer  of 
land.  An  unregistered  deed  is  not  effectual  to  pass  an  interest  in  land, 
but  it  may  pass  an  equitable  right  to  set  aside  a  certificate  of  title 
obtained  by  fraud  (M'Mlister  v.  Biggs,  1883,  8  App.  Cas.  314;  and  see 
also  Wliite  v.  Neaylon,  1886,  11  App.  Cas.  171).  There  is  no  edition  of 
Revised  Statutes,  but  in  1868  a  selection  of  Acts  of  public  importance, 
arranged  in  alphabetical  order,  was  published  in  four  volumes,  but  it  is 
long  since  out  of  date.  There  is  an  annual  volume  of  Acts  published 
with  an  index.  A  general  index  to  the  Colonial  Statute  Law  was  pub- 
lished in  1894  by  the  Colonial  Government.  Certain  Imperial  Acts 
conferring  powers  on  the  legislature  of  South  Australia  in  common  with 
the  other  Commonwealth  States  are  referred  to  in  the  article  New  South 
Wales  (sub-heading  Laws). 

Courts  of  Law. — The  Supreme  Court  of  South  Australia  was  estab- 
lished as  "  The  Supreme  Court  of  the  Province  of  South  Australia  "  by 
Act  No.  5  of  1837,  and  is  now  regulated  by  Act  No.  31,  1855-6,  as  sub- 
sequently amended.  The  Supreme  Court  consists  of  a  Chief  Justice  and 
two  Puisne  Judges,  and  to  it  appeals  lie  from  inferior  Courts.  Appeals 
from  the  Supreme  Court  lie  to  the  (Federal)  High  Court  of  Australia. 
Formerly  an  appeal  lay  from  the  Supreme  Court  of  South  Australia 


SOUTH  AUSTEALIA  507 

direct  to  His  Majesty  in  Council,  and  was  regulated  by  Order  in  Council 
of  June  9,  1860  {ibid.,  vol.  vi.,  "  Judicial  Committee,"  p.  85),  under  the 
Judicial  Committee  Act,  1844,  7  &  8  Viet.  c.  69,  but,  as  stated  in  the 
article  Australia  {q.v.),  this  right  of  appeal  has  been  taken  away  by 
the  Commonwealth  Judiciary  Act,  1903.  There  is  a  Court  of  Vice- 
Admiralty,  of  which  the  Chief  Justice  is  judge.  There  are  also  four 
Circuit  Courts  presided  over  by  judges  of  the  Supreme  Court.  The 
Court  of  Insolvency  is  presided  over  by  a  Commissioner,  who  is  a 
stipendiary  magistrate,  or  by  a  judge  of  the  Supreme  Court.  There 
are  also  five  local  Courts  of  Insolvency  presided  over  by  stipendiary 
magistrates.  There  are  besides  local  Courts  of  Civil  Jurisdiction  in  all 
the  principal  towns  constituted  by  stipendiary  magistrates.  Courts  of 
Limited  Jurisdiction  constituted  by  justices  of  the  peace,  and  Police 
Magistrates'  Courts,  Hitherto  there  has  been  also  a  Circuit  Court  and 
a  local  Court  of  Insolvency  for  the  Northern  Territory;  but  the 
severance  of  the  territory  (see  above)  will  doubtless  call  for  new 
arrangements. 

Application  of  Imperial  Ads. — The  Imperial  Acts  relating  to  the 
constitution  of  the  State  and  those  conferring  express  legislative  powers 
on  the  Parliament  are  referred  to  above.  South  Australia,  as  all  the 
other  Commonwealth  States  and  New  Zealand,  was  a  party  to  the  agree- 
ment for  increasing  the  naval  force  for  the  protection  of  the  floating 
trade  in  Australasian  waters  (51  &  52  Vict.  c.  32). 

It  remains  to  notice  various  Orders  in  Council  by  which,  under 
statutory  powers.  Imperial  Acts  have  been  applied  to  South  Australia. 

On  August  1, 1896,  the  Imperial  Coinage  Acts  were  applied  to  South 
Australia  by  the  same  Order  in  Council  (St.  R.  &  0.,  Rev.  1904,  vol.  ii., 
"  Coin,  Colonies,"  p.  28)  as  applied  them  to  the  other  Commonwealth 
States  and  to  New  Zealand. 

Probates  granted  in  South  Australia  are  recognised  by  the  Home 
Courts  {ibid.,  vol.  i.,  "  Administration,"  p.  2),  and  property  paying  death 
duties  in  the  State  is  exempted  from  payment  over  again  under  Sir  W. 
Harcourt's  Finance  Act  {ibid.,  vol.  iv.,  "  Death  Duties,"  p.  3). 

By  Order  in  Council  of  February  2,  1895  {ibid.,  vol.  ii.,  "  Copyright," 
p.  31),  the  Vienna  Copyright  Convention  was  applied  to  South  Australia, 
and  by  Order  in  Council  of  March  26,  1907  (St.  R.  &  0.,  1907,  p.  263), 
the  provisions  of  46  &  47  Vict.  c.  57,  s.  103  (now  replaced  by  7  Edw.  vii. 
c.  29,  s.  91),  as  to  patents,  trade  marks,  and  copyright  in  designs  was 
applied  to  the  whole  Commonwealth  of  Australia.  As  to  extradition, 
the  Commonwealth  Extradition  Act,  1903,  has  been  incorporated  with 
the  Imperial  Extradition  Acts  (St.  R.  &  0.,  1904,  p.  250),  and  by  Order 
in  Council  of  August  23,  1883  (St.  R.  &  O.,  Rev.  1904,  vol.  v.,  "  Fugitive 
Criminal,"  p.  324),  South  Australia  has  been  grouped,  for  the  purpose 
of  inter-colonial  backing  of  warrants,  under  Part  II.  of  the  Fugitive 
Offenders  Act,  1881,  with  the  other  States  of  the  Commonwealth. 

As  to  ships  and  shipping,  certificates  of  competency  granted  by  the 
Marine  Board  or  other  proper  authority  for  the  time  being  in  South 
Australia  are,  under  an  Order  in  Council  of  May  9,  1891  {ibid.,  vol.  viii., 
"  Merchant  Shipping,"  p.  46),  as  amended  by  Order  in  Council  of  October 
22,  1906  (St.  R.  &  0.,  1906,  p.  397),  declared  to  be  equivalent  to  those 
granted  by  the  Imperial  Board  of  Trade.  By  Order  in  Council  of  May 
15,  1900  (St.  R.  &  0.,  Rev.  1904,  vol.  viii.,  "  Merchant  Shipping,"  p.  227), 
loadlines  fixed  and  certificates  granted  in  South  Australia  are  to  have 
effect  with  respect  to  ships  registered  there  as  if  fixed,  marked,  or  given 


508  SOUTHEEN  NIGEEIA 

under  57  &  58  Vict.  c.  60,  s.  444.  By  Order  in  Council  of  February  14, 
1883  {ibid.,  p.  129),  the  provisions  of  57  &  58  Vict.  c.  60,  s.  284,  as  to 
passengers  in  passenger  steamers  were  extended  to  South  Australia. 

Part  II.  of  the  Medical  Act,  1886,  49  &  50  Vict.  c.  48,  has  been 
applied  to  South  Australia  by  Order  in  Council  of  February  2.3,  1891 
{ibid.,  "  Medical  Profession,"  p.  5),  so  that  medical  practitioners  holding 
recognised  South  Australia  diplomas  are  entitled  to  be  registered  as 
colonial  practitioners  in  the  medical  register  without  examination  in 
the  United  Kingdom. 

By  Orders  in  Council  of  November  4,  1901,  and  August  10,  1903 
{ibid.,  vol.  xi.,  "  Solicitor,  Colonies,"  pp.  33,  36),  the  Colonial  Solicitors 
Act  has  been  extended  to  South  Australia  as  regards  the  United 
Kingdom. 

By  Order  in  Council  of  February  11, 1907  (St.  E.  &  0.,  1907,  p.  980), 
the  Colonial  Officers  (Leave  of  Absence)  Act,  1904,  was  applied  to  the 
whole  Commonwealth  of  Australia.  The  Admiralty  were  authorised  by 
Order  in  Council  of  August  7, 1900  (St.  E.  &  0.,  1900,  p.  501),  to  accept 
the  offer  of  the  Government  of  South  Australia  to  place  a  colonial  vessel 
of  war  at  His  Majesty's  disposal ;  and  by  Order  in  Council  of  August  5, 
1892  (St.  E.  &  0.,  Eev.  1904,  vol.  x.,  "Post  Office,"  p.  104),  the  Mail 
Ships  Act,  1891,  has  been  applied  to  South  Australia  in  the  case  of  the 
French  Convention. 

[See  Colonial  Office  List ;  Statesman's  Year-Book ;  the  Journal  of 
Comparative  Legislation,  vol.  ii.  p.  279;  and  the  Statutes  of  South 
Australia.] 

Southern  Nig'eria. — Area. — The  colony  of  Southern  Nigeria 
is  situated  on  the  Bight  of  Benin,  and  is  bounded  on  the  south  by  the 
Atlantic  Ocean,  on  the  west  by  Dahomey  (see  Fkance),  on  the  north  by 
the  Protectorate  of  Southern  Nigeria  {q.v.),  and  on  the  east  by  the 
German  Kameruns  (see  German  Empire).  The  total  area  of  the  Lagos 
province  (which  comprises  the  colony  and  all  territories  formerly  within 
the  Lagos  Protectorate)  is  27,640  square  miles,  or  nearly  as  large  as 
Ireland. 

Earlier  History. — The  colony  of  Southern  Nigeria,  formerly  the 
colony  of  Lagos,  was  a  great  centre  of  the  slave  trade  from  1851 
onwards.  To  put  down  this  traffic  Great  Britain  intervened,  expelled 
the  King,  and  appointed  a  British  consular  agent  to  reside  in  Lagos. 
The  ensuing  treaty  was  constantly  broken,  and  in  1861  Great  Britain 
induced  the  King  to  cede  Lagos  and  Iddo.  In  1863  Lagos  was  constituted 
a  separate  Government  by  Letters  Patent  of  March  13,  1863,  but  three 
years  later  by  the  Charter  of  February  19,  1866,  Lagos  was  united  with 
the  other  "West  African  Settlements  under  the  Governor-in-chief  at 
Sierra  Leone  {q.v.),  though  it  retained  its  own  Legislative  Council. 
By  the  Charter  of  July  24,  1874,  Lagos  was  incorporated  with  the 
Gold  Coast  Colony  {q.v.),  but  by  Letters  Patent  of  January  13,  1886 
(St.  E.  &  0.,  Eev.  1904,  vol.  vi.,  "Lagos,"  p.  1),  once  more  became 
a  separate  colony.  From  1862  up  to  1892  the  colony  was  largely 
added  to,  as  was  the  Lagos  Protectorate,  by  cessions  made  by  the 
native  chiefs  who  were  desirous  of  coming  under  British  protection. 
In  1892,  as  a  result  of  a  military  expedition  against  the  Jebus,  part 
of  their  territory  was  included  in  the  protectorate,  and  the  whole  of 
their  country  was  incorporated  therewith  in  1895.  By  Anglo-French 
Agreements  of  1889,  1896,  and  1898,  the  frontier  of  the  protectorate 


SOUTHEEN  NIGEEIA  509 

was  finally  delimited.  By  Order  in  Council  in  1899  the  Lagos  Protec- 
torate was  extended  to  the  boundaries  of  the  Northern  and  Southern 
Nigeria  Protectorates.  Early  in  1906  by  Letters  Patent  provision  was 
made  for  the  colony  and  protectorate  to  be  known  as  the  colony  of 
Southern  Nigeria,  and  for  the  government  thereof,  and  by  the  Anglo- 
French  Agreement  of  October  19,  1906  (Pari  Paper,  1907  [Cd.  3303]) 
the  frontier  between  the  British  and  French  possessions  from  the  Gulf 
of  Guinea  to  the  Niger  were  delimited. 

Constitution. — By  Letters  Patent  dated  February  28, 1906  (St.  R  &  0., 
1906,  p.  885),  which  came  into  force  May  1, 1906,  the  colony  of  Southern 
Nigeria  was  created  out  of  the  original  colony  and  protectorate  of  Lagos, 
and  together  with  the  original  Southern  Nigeria  Protectorate  {q.v.) 
is  under  one  administration  under  the  title  of  the  "  Colony  and  Protec- 
torate of  Southern  Nigeria."  A  Governor  and  Commander-in-Chief 
administers  the  colony  with  the  aid  of  an  Executive  and  Legislative 
Council  consisting  of  official  and  non-otficial  members.  The  colony  is 
of  the  pure  "  Crown  "  Colony  class.  The  Governor  has  the  usual  powers 
of  pardon  and  appointment  of  judges  and  officials  (see  article  Colony). 
For  administrative  purposes  the  whole  of  Southern  Nigeria  is  divided 
into  three  Provinces,  of  which  the  former  colony  and  protectorate  of 
Lagos  form  the  Western  or  Lagos  Province.  A  Provincial  Commis- 
sioner presides  over  the  Province,  which  is  divided  into  districts  under 
District  and  Assistant  District  Commissioners.  The  Legislative  Council 
of  the  colony  legislates  for  the  adjoining  protectorate. 

Laws. — By  a  local  Ordinance  of  1863  it  was  enacted  that  the  law  of 
the  colony  was  that  of  England  as  on  January  1,  1863,  so  far  as  it  was 
not  inconsistent  with  any  colonial  Ordinance  and  local  circumstances 
permitted.  As  incorporated  with  the  Gold  Coast  (see  above)  in  1874, 
the  colony  was  governed  by  the  Gold  Coast  Ordinance,  No.  4  of  1876, 
which  enacted  that  the  law  of  the  colony  should  be  that  of  England  as 
on  July  24,  1874.  Since  then  English  law  has  been  largely  modified  by 
local  Ordinances.  The  Ordinances  of  the  colony  were  revised  in  1901 
by  the  Colonial  Attorney-General,  Mr.  E.  A.  Speed,  and  contains  all  the 
Ordinances  in  force  up  to  April  30, 1901,  chronologically  arranged,  with 
an  index.  An  annual  Volume  of  Ordinances  is  also  published  periodi- 
cally. By  Ordinance  No.  3  of  1908  the  whole  statute  law  of  the  colony 
and  protectorate  was  consolidated  into  140  chapters,  each  of  which  may 
also  be  cited  as  a  separate  Ordinance. 

Courts  of  Law. — The  Supreme  Court  of  the  colony  was  established  by 
Ordinance  No.  4  of  1876,  and  is  now  regulated  by  the  Supreme  Court 
Ordinance  (Rev.  Laws,  ch.  3).  The  Supreme  Court  has  original  civil  and 
criminal  jurisdiction.  The  Supreme  Court  consists  of  a  Chief  Justice 
and  Puisne  Judges,  including  the  judges  of  the  Supreme  Courts  of  the 
Gold  Coast  and  the  Northern  Nigeria  Protectorate.  Under  Order  in 
Council  of  July  5,  1889  (St.  R.  &  0.,  Rev.  1904,  vol.  vi.,  "Judicial 
Committee,"  p.  47)  under  7  &  8  Vict.  c.  69,  s.  1,  appeals  lie  from  the 
Supreme  Court  of  Southern  Nigeria  to  His  Majesty  in  Council.  There 
are  also  Inferior  Courts  presided  over  by  District  Commissioners,  and 
a  Police  Magistrates'  Court. 

Application  of  Imperial  Acts. — By  the  Nigeria  Coinage  Order,  1906 
(St.  R.  &  0.,  1906,  p.  41),  as  amended  by  the  Nigeria  Coinage  Order, 
1907  (St.  R.  &  0.,  1907,  p.  42),  the  currency  of  the  colony  and  of  the 
two  Nigeria  Protectorates  was  assimilated. 

Under  these  Orders  the  Imperial  currency  is  current,  and  provision 


510  SOUTHEKN  NIGERIA  PROTECTORATE 

is  made  for  issue  from  the  Royal  Mint  of  special  coins  of  one  penny  and 
one-tenth  of  a  penny.  By  Orders  in  Council  of  June  10, 1843,  June  30, 
1852,  and  November  28,  1874  (St.  R.  &  0.,  Rev.  1904,  vol.  ii.,  "  Coin 
Colonies,"  pp.  13,  15,  17),  various  foreign  coins,  including  gold  of  the 
United  States  of  America  and  five-franc  pieces  of  the  Latin  Union,  were 
current  in  the  colony.  By  Order  in  Council  {ibid.,  vol.  v.,  "  Fugitive 
Criminal,"  p.  132)  the  Gold  Coast  Extradition  Ordinance,  1877  (now 
reproduced  as  Ch.  XXIII.  of  the  Laws  of  Southern  Nigeria),  has  effect  in 
the  colony  as  if  it  were  part  of  the  Imperial  Act. 

The  Colonial  Probates  Act,  1892,  has  been  applied  to  Southern 
Nigeria  {ibid.,  vol.  i.,  "Administration,"  p.  4),  as  has  sec.  20  of  the 
Finance  Act,  1894  {ibid.,  vol.  iv.,  "Death  Duties,"  p.  5).  For  the  pur- 
pose of  inter-colonial  backing  of  extradition  warrants,  Southern  Nigeria 
has  been  grouped  with  our  other  West  African  colonies  and  protectorates 
{ibid.,  vol.  v.,  "  Fugitive  Criminal,"  p.  330).  The  revenues  of  the  colony 
have  by  Treasury  determination  {ibid.,  vol.  ix., "  Pension,"  p.  23)  been  made 
applicable  to  superannuation  allowances.  By  sec.  5  of  the  Public  Works 
Loans  Act,  1907,  7  Edw.  vii.  c.  36,  the  Treasury  were  authorised  to  lend 
to  the  Colonial  Government  £2,000,000  for  the  purpose  of  constructing 
and  improving  railway  and  other  communication  in  Southern  and 
Northern  Nigeria,  and  certain  provisions  of  the  Colonial  Loans  Act, 
62  &  63  Vict.  c.  36,  were  applied  to  the  loan. 

[See  Colonial  Office  List ;  Lucas's  Historical  Geogra-phy  of  the  British 
Colonies,  vol.  iii. ;  and  the  Colonial  Ordinances.] 

Southern  Nig'eria  Protectorate.— ^rm.— The  Pro- 
tectorate of  Southern  Nigeria  is  bounded  on  the  north-west  by  the 
colony  of  Southern  Nigeria  {q.v.),  on  the  north  by  the  Northern 
Nigeria  Protectorate  {q.v.),  on  the  east  by  the  German  Kameruns 
(see  German  Empire),  and  on  the  south  by  the  Atlantic  Ocean.  The 
area  of  the  Eastern  and  Central  provinces  is  49,620  square  miles,  or 
about  as  large  as  England;  as  to  the  other  (Lagos)  province,  see 
Southern  Nigeria. 

Earlier  History. — The  Oil  Rivers  were  known  to  English  merchants 
in  the  16th  century,  and  the  Benin  River  was  much  frequented  by 
them,  but  it  was  not  until  the  19th  century  that  the  Oil  Rivers 
were  known  to  form  part  of  the  Niger  Delta.  The  Niger  Coast  Pro- 
tectorate, now  forming  part  of  the  Southern  Nigeria  Protectorate,  was 
the  outcome  of  several  treaties  made  in  1884  by  the  British  Consul  in 
the  Bight  of  Benin  at  the  time  when  Germany  annexed  the  Kameruns. 
The  British  protectorate  was  proclaimed  in  1885,  and  more  territory 
was  added  when  the  Royal  Niger  Company  (see  Companies,  Chartered) 
obtained  its  charter  in  the  following  year.  Further  additions  were  made 
in  1893  when  the  protectorate  received  the  name  of  the  Niger  Coast 
Protectorate,  and  again  when  the  Imperial  Government  took  over  the 
territory  from  the  Company,  and  the  Protectorate  of  Southern  Nigeria 
was  constituted  by  Order  in  Council  of  December  27,  1899  (St.  R.  &  0., 
Rev.  1904,  vol.  v., "  Foreign  Jurisdiction,"  p.  167).  By  the  Anglo-French 
Agreement  of  October  19,  1906  (Pari.  Papers,  1907  [Cd.  3303]),  the 
frontier  of  the  British  and  French  possessions  from  the  Gulf  of  Guinea 
to  the  Niger  were  delimited. 

Administration. — The  Government  of  the  protectorate  is  regulated 
by  Order  in  Council  of  February  16,  1906  (St.  R.  &  0.,  1906,  pp.  217- 
222),  under  which  the  legislative  powers  are  in  the  Legislative  Council 


SOVEREIGN  511 

of  the  colony  of  Southern  Nigeria  {q.v.),  and  the  powers  of  the  High 
Commissioner  are  transferred  to  the  Governor  of  that  colony.  The  pro- 
tectorate is  divided  into  two  provinces — the  Eastern  and  Central — each 
of  which  is  presided  over  by  a  Provincial  Commissioner.  Each  province 
is  divided  into  districts  under  the  control  of  District  Commissioners, 
assisted  by  Assistant  District  Commissioners. 

Laws. — The  law  in  force  is  contained  in  the  Proclamations  enacted 
by  the  High  Commissioner,  and  in  the  Ordinances  of  the  Southern 
Nigeria  Colony  so  far  as  they  are  applicable.  Civil  and  criminal 
procedure  is  governed  by  the  Supreme  Court  Proclamations  (1900, 
1902,  and  1903),  the  Criminal  Procedure  Proclamation,  ch.  14  of  Eev. 
Laws,  1900,  the  Commissioners'  Proclamations,  1900  and  1903,  the 
Police  Magistrates'  Proclamation,  1903,  and  the  Native  Courts  Pro- 
clamations, 1901  and  1903.  Native  law  is  administered  in  all  Courts 
80  far  as  not  repugnant  to  natural  justice  and  not  in  contravention 
with  any  statute. 

Courts  of  Law. — The  Supreme  Court  of  Southern  Nigeria  {q.v.)  has 
original  civil  and  criminal  jurisdiction  throughout  the  protectorate,  and 
such  jurisdiction  is  regulated  by  the  Supreme  Court  Proclamations  of 
1900,  1902,  and  1903.  The  Supreme  Court  decides  appeals  from  the 
inferior  Courts  in  civil  matters,  and  the  chief  justice  is  empowered  to 
revise  the  decisions  of  Commissioners  in  criminal  matters.  There  are 
District  Courts  whose  jurisdiction  both  in  civil  and  criminal  matters 
is  limited,  and  which  are  presided  over  by  District  Commissioners.  At 
Calabar  there  is  a  Police  Magistrates'  Court  with  a  similar  limited  juris- 
diction. In  each  district  there  are  Native  Courts  presided  over  by  the 
District  Commissioners,  and  these  Courts  have  the  power  to  make  rules 
for  the  peace,  good  order,  and  welfare  of  the  natives,  but  subject  to  the 
High  Commissioner's  approval. 

Application  of  Imperial  Acts. — The  currency  has  been  assimilated 
with  that  of  the  colony  (see  Southern  Nigeria).  The  Colonial  Prisoners 
Removal  Act,  1884,  has  been  applied  to  the  protectorate  (St.  R.  &  0., 
Rev.  1904,  vol.  v.,  "  Foreign  Jurisdiction,"  p.  172).  An  Order  in  Council 
of  January  25,  1908  (St.  R.  &  0.,  1908,  No.  62),  provides  that  the  senior 
officer  of  customs  at  any  place  in  the  protectorate  may  do  any  act 
authorised  to  be  done  by  a  consular  officer  under  the  Merchant  Shipping 
Acts,  and  a  further  Order  in  Council  of  July  4,  1908  (St.  R.  &  0.,  1908, 
No.  559),  provides  for  the  taking  of  seamen's  depositions  under  sec.  7  of 
the  Workmen's  Compensation  Act,  1906.  For  the  purpose  of  inter- 
colonial backing  of  extradition  warrants  the  protectorate  has  been 
grouped  with  our  other  West  African  colonies  and  protectorates  {ibid., 
"  Fugitive  Criminal,"  p.  330).  The  revenues  of  the  protectorate  have 
been  made  applicable  to  superannuation  allowance  by  Treasury  deter- 
mination {ibid.,  vol.  ix.,  "  Pension,"  etc.,  p.  27).  Navigation  on  the  Niger 
and  transit  through  the  protectorate  are  regulated  by  Orders  in  Council 
of  August  10,  1903  {ibid.,  vol.  v.,  "Foreign  Jurisdiction,"  pp.  159,  161). 
By  the  Southern  Nigeria  Maritime  Order  in  Council,  1904  (St.  R.  &  0., 
1904,  p.  555),  the  port  of  Old  Calabar  was  made  a  port  of  registry  for 
British  ships. 

[See  the  Colonial  Office  List;  Lucas's  Historical  Geography/  of  the 
British  Colonies;  and  the  local  Proclamations.] 

SovereigTI. — This  term  is  used  to  designate  the  King,  or  Queen, 
of  the  United  Kingdom ;  often  also  in  the  phrases  "Our  Sovereign  Lord 


512  SOVEREIGN 

the  King  "  or  "  Our  Sovereign  Lady  the  Queen  "  in  Acts  of  Parliament 
and  proclamations.  There  is  implied  in  it  the  theory  that  the  King  is 
the  possessor  of  sovereignty,  or  the  powers  of  supreme  government,  as  a 
monarch  in  the  strict  sense  of  jurists  and  constitutional  writers ;  and 
in  that  sense  it  has  long  ceased  to  be  a  correct  designation.  The  King 
is  neither  "sovereign"  nor  "monarch,"  but,  this  notwithstanding,  he 
hardly  is  mentioned  oftener  by  his  appropriate  title  of  "King"  than 
by  those  inappropriate  and  affected  names  (Austin,  Jurisprudeiice. 
Campbell's  ed.,  note,  p.  242). 

But  though  the  real  position  of  the  King  or  Crown  in  the  State  is  not 
defined  by  the  use  of  this  term,  and  is  not  now  understood  to  be  so,  the 
style  has  been  used  for  centuries,  and  continues  still  to  be  convenient  as 
a  compendious  term  applicable  alike  to  either  King  or  Queen.  Thus 
by  virtue  of  the  Act  of  Union  of  Great  Britain  and  Ireland  (39  &  40 
Geo.  III.  c.  67),  and  a  Proclamation  of  1801,  the  style  and  titles  of  Queen 
Victoria  before  1876  were — "Victoria,  by  the  Grace  of  God  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  Queen,  Defender  of  the 
Faith."  In  the  latter  year,  under  the  Eoyal  Titles  Act,  1876,  39  &  40 
Vict.  c.  10,  the  Queen  by  proclamation  added  to  her  previous  style  and 
titles  the  title  "Empress  of  India."  [The  Royal  Titles  Act,  1901, 
1  Edw.  VII.  c.  15,  made  it  lawful  for  His  Majesty,  with  a  view  to  the 
recognition  of  his  dominions  beyond  the  seas,  by  Eoyal  Proclamation 
under  the  Great  Seal,  to  make  such  addition  to  the  style  and  titles 
appertaining  to  the  Imperial  Crown  of  the  United  Kingdom  and  its 
dependencies  as  to  His  Majesty  might  seem  fit.  In  virtue  of  the  powers 
conferred  by  this  statute.  His  Majesty  assumed  the  title  of  "  Edward 
Seventh,  by  the  Grace  of  God  of  the  United  Kingdom  of  Great  Britain 
and  Ireland  and  of  the  British  Dominions  beyond  the  Seas  King, 
Defender  of  the  Faith,  Emperor  of  India."]  The  term  Sovereign  is 
therefore  a  style  which  includes  all  these  titles. 

The  question  whether  a  female  succeeding  to  the  throne  succeeds  to 
the  kingly  office  and  prerogative  was  raised  upon  the  accession  of  Mary, 
the  first  woman  who  had  been  queen  regnant,  and  answered  in  the 
affirmative  (see  1  Mary,  sess.  3,  a.d.  1554). 

There  are  three  cases  in  English  history  of  the  Sovereign  being  queen 
regnant,  and  being  married;  Queen  Mary  in  the  sixteenth  century. 
Queen  Anne,  and  Queen  Victoria. 

Philip  of  Spain  (Statute  1  Mary,  sess.  3,  c.  2)  enjoyed  during  the 
marriage,  jointly  with  the  Queen,  the  style,  honours,  and  kingly  name 
of  the  realms  and  dominions  unto  the  Queen  appertaining,  and  he  was 
"  to  aid  Her  Highness  in  the  happy  administration  of  Her  Grace's  realms 
and  dominions."  Certain  safeguards  were  provided  which  it  is  not 
necessary  to  specify  here. 

In  the  case  of  the  Prince  and  Princess  of  Orange,  which  was  quite 
sui  generis,  it  was  resolved  and  declared  by  the  Bill  of  Rights,  1  Will. 
&  Mary,  sess.  2,  c.  2,  that  William  and  Mary,  Prince  and  Princess  of 
Orange,  should  be  King  and  Queen  of  England,  France,  and  Ireland,  and 
the  dominions  thereunto  belonging,  to  hold  the  crown  and  royal  dignity 
of  the  said  kingdoms  and  dominions  during  their  lives,  and  the  life  of 
the  survivor  of  them ;  and  that  the  sole  and  full  exercise  of  the  regal 
power  be  only  in,  and  executed  by,  the  Prince  of  Orange  in  the  names 
of  the  Prince  and  Princess  during  their  joint  lives. 

Upon  the  marriage  of  Queen  Victoria  with  Prince  Albert  of  Saxe 
Coburg,  he  was  naturalised  by  Act  of  Parliament,  after  taking  the  oaths 


SOVEREIGN  513 

of  allegiance  and  supremacy ;  and  he  continued  to  be  known  by  his  title  of 
Prince  Albert  until  1857,  when  the  Queen  made  him  "  Prince  Consort" 
by  patent.  He  had  immediately  upon  his  marriage,  however,  been  given 
precedence  next  to  Her  Majesty  upon  all  occasions,  and  in  all  meetings, 
except  where  otherwise  provided  by  Act  of  Parliament.  This  patent  in 
1857  neither  conferred  any  additional  title,  dignity,  nor  privileges,  nor 
did  it  give  him  higher  rank  abroad,  where  the  patent  had  no  validity 
(see  Greville's  Memoirs,  part  iii.,  vol.  ii.  p.  112).  No  peerage  was  con- 
ferred (see  the  reasons  against  the  grant  of  a  peerage  stated  by  the  Queen 
{Letters  of  Queen  Victoria,  vol.  i.  p.  252)),  and  in  most  other  respects  the 
status  of  the  Prince  Consort  remained  essentially  unchanged ;  as  it  did 
in  the  similar  instance  of  Prince  George  of  Denmark,  who,  however,  was 
also  created  Duke  of  Cumberland ;  see  memorandum  by  Queen  Victoria 
on  the  position  of  the  husband  of  a  queen  regnant  {Letters  of  Queen 
Victoria,  vol.  iii.,  pp.  244  et  seq.). 

The  Queen  Consort  is  the  wife  of  the  reigning  King,  and  her  position 
always  differed  from  that  of  married  women  in  general,  as  she  was  con- 
sidered in  law  as  a  feme  sole.  By  an  Act  still  existing  (32  Hen.  viii. 
c.  51  (1540)),  she  was  enabled  to  take  grants  from  the  King  and  to  sue 
and  be  sued  in  her  own  name  by  the  addition  of  Queen  of  England. 
The  Private  Property  of  the  Sovereign  Act,  39  &  40  Geo.  in.  c.  88,  ss.  8 
and  9,  confirmed  this  power  of  acquisition  and  disposal  of  property,  and 
was  intended  to  make  more  certain  the  power  of  devising  and  bequeathing 
it  during  the  life  of  the  King ;  and  it  enacted  that  during  the  joint  lives 
the  Queen  might  dispose  of  manors,  etc.,  purchased  by  or  held  in  trust 
for  her,  or  that  might  vest  in  her  by  deed  or  will ;  and  might  bequeath 
all  chattels  and  personal  estate  as  if  she  were  sole,  by  her  will.  Acts  of 
Parliament  relating  to  her  need  not  be  pleaded ;  the  Court  takes  judicial 
notice  of  them,  as  she  is  a  public  person  (8  Rep.  28).  She  has  a  separate 
Court,  and  ceremonial  offices  and  officers,  distinct  from  the  King.  In 
former  reigns  she  had  her  Attorney-  and  Solicitor-General,  but  up  till 
now  (1908)  there  have  been  no  appointments  to  these  offices  during  the 
present  reign.  Her  Attorney-  and  Solicitor-General  were  entitled  to  sit 
within  the  bar  of  the  King's  Courts  and  rank  with  the  King's  Counsel. 
It  seems  that  she  can  sue  by  these  officers,  by  information,  or  she  can 
sue  and  be  sued  in  her  own  person  by  ordinary  action  (Robertson's 
Civil  Proceedings  by  and  against  the  Croum,  p.  6).  The  Queen  Consort  is 
in  every  respect  a  subject,  but  by  the  Statute  of  Treasons,  25  Edw.  ill, 
St.  5,  c.  2,  the  compassing  and  imagining  her  death  is  high  treason,  and  the 
commission  of  adultery  with  her  constitutes  the  same  offence  in  both 
parties.  Provision  is  now  made  for  the  Queen  Consort  by  statute,  which 
takes  the  place  of  the  original  revenue  consisting  of  certain  reservations 
and  rents  out  of  the  demesne  lands  of  the  Crown ;  and  of  what  was 
known  as  Queen-gold,  the  portion  of  any  sum  paid  by  a  subject  to  the 
King  in  return  for  any  grant  or  office  of  franchise.  [See  Civil  List,  and 
Civil  List  Act,  1901,  1  Edw.  vii.  c.  iv.]  The  Queen  Consort  is  not 
entitled  as  of  right  to  be  crowned  along  with  the  King  {Queen  Caroline's^ 
Claim,  1  St.  Tri.  (N.  S.)  950).  On  the  death  of  the  King  these  enact- 
ments cease  to  apply  to  her.  It  is  said  she  cannot  marry  again  without 
the  King's  licence,  but  this  is  disputed  (Black.  Com.,  i.  223).  She  was- 
entitled  to  dower  at  common  law,  although  she  was  an  alien  (Co.  Litt.  31). 
If  she  marry  a  subject  she  retains  her  regal  dignity,  and  can  sue  by  the 
name  of  Queen  of  England. 

The  Coronation  of  English  Sovereigns.  —  The  coronation  of  the 
VOL.  xiii.  33 

/ 


514  SOVEREIGN 

Sovereign  is  the  ceremony  of  investiture  with  the  crown  and  other 
ensigns  symbolical  of  sovereignty.  Before  the  hereditary  title  of  the 
Crown  had  become  established,  it  followed  upon  the  election  of  the 
Sovereign,  and  took  the  form  of  a  religious  service  of  consecration,  or 
ordination,  resembling  in  many  of  its  features  the  consecration  or 
ordination  of  a  bishop ;  as  will  be  seen  from  the  description  below  of 
the  coronation  of  His  Majesty,  which,  on  the  whole,  with  certain 
modern  alterations,  reproduced  the  ancient  forms. 

From  the  legal  point  of  view  the  ceremony  has  lost  its  original  force 
(it  is  still  of  great  importance,  however,  in  view  of  the  relation  of  the 
Sovereign  to  the  Church  of  England),  since  there  no  longer  exists  the 
need  for  the  religious  sanction  of  the  title  by  election,  nor  does  any 
interregnum  intervene  between  the  death  of  one  Sovereign  and  the 
coronation  of  another,  as  happened  down  to  the  reign  of  Edward  i. 
Before  that  time  the  justiciar  preserved  the  peace,  or  the  future  King, 
as  lord  of  England,  acted  for  that  purpose  (see  Stubbs,  Select  Charters, 
446;  Pollock  and  Maitland,  History  of  English  Law,  i.  507;  and  Anson, 
Law  and  Cvstom  of  the  Constitution,  3rd  ed.,  vol.  ii., "  The  Crown,"  part  i. 
p.  227). 

Edward  began  his  reign  before  his  coronation,  which  took  place  two 
years  after  his  father's  death.  In  the  case  of  the  coronation  of  Queen 
Victoria,  a  little  over  a  year,  [and  in  that  of  King  Edward  vii.,  over 
a  year  and  a  half]  elapsed  between  the  accession  and  coronation. 

The  earliest  coronation  circumstantially  described  is  that  of  Richard  i.; 
but  there  are  accounts  before  the  Conquest.  Before  the  foundation  of 
"Westminster  Abbey  by  Edward  the  Confessor,  it  took  place  at  Bath,  or 
Winchester,  or  Kingston-upon-Thames.  Afterwards  Westminster  Abbey 
became  the  exclusive  scene  of  the  ceremony.  The  Archbishop  of  Canter- 
bury at  first  claimed  the  sole  right  of  crowning,  and  as  Metropolitan  he 
has  continued  to  perform  the  chief  part  in  the  ceremony,  and  the  actual 
placing  of  the  crown  on  the  head  of  the  Sovereign. 

In  the  case  of  a  doubtful  title,  as  in  the  earlier  times,  the  ceremony 
was  frequently  performed  more  than  once. 

On  the  whole,  the  ancient  and  modern  forms  do  not  essentially  differ. 
At  the  coronation  of  His  Majesty  Edward  the  Seventh,  the  rubric  of  the 
service  proceeds  thus :  The  King  being  on  his  Chair  of  State,  the  Arch- 
bishop of  Canterbury,  accompanied  by  the  Lord  Chancellor,  the  Lord 
Great-Chamberlain,  the  Lord  High-Constable,  and  the  Earl  Marshal, 
preceded  by  Deputy  Garter,  made  the  recognition  thus: — 

Sirs, — I  here  present  unto  you  King  Edward  Vii.,  the  undoubted  King  of 
this  realm  ;  wherefore  all  you  who  are  come  this  day  to  do  your  homage,  are 
you  willing  to  do  the  same? 

During  this  time  His  Majesty  was  standing  up  by  his  chair,  and  turning 
towards  the  people  on  the  side  at  which  the  recognition  was  made.  The  people 
then  replied  with  loud  and  repeated  acclamations  of  "  God  save  King  Edward 
the  Seventh." 

The  regalia  having  been  delivered  to  the  Sub-Dean  of  Westminster, 
the  service  proceeded. 

The  King  had  previously,  in  the  presence  of  the  two  Houses  of 
Parliament,  made  and  signed  the  declaration  against  transubstantiation, 
which,  by  the  Act  of  Settlement,  12  &  13  Will.  ill.  c.  2,  s.  2,  must  be  made 
at  the  first  day  of  the  meeting  of  the  first  Parliament,  or  at  the  coronation. 


SOVEEEIGN  515 

Then  followed  the  coronation  oath,  administered  in  the  following 
manner  by  the  Archbishop : —  ^^ 

Archbishop. — Will  you  solemnly  promise  and  swear  to  govern  the  people  of 
this  United  Kingdom  of  Great  Britain  and  Ireland,  and  the  dominions  thereto 
belonging,  according  to  the  Statutes  in  Parliament  agreed  on, and  the  respective 
laws  and  customs  of  the  same  ? 

King. — I  solemnly  promise  so  to  do. 

Archbishop. — Will  you  to  your  power  cause  law  and  justice,  in  mercy,  to  be 
executed  in  all  your  judgments  ? 

King. — I  will. 

Archbishop. — Will  you  to  the  utmost  of  your  power  maintain  the  laws  of 
God,  the  true  profession  of  the  Gospel,  and  the  Protestant  reformed  religion 
established  by  law?  And  will  you  maintain,  and  preserve  inviolably,  the 
settlement  of  the  Church  of  England,  and  the  doctrine,  worship,  discipline, 
and  government  thereof  as  by  law  established  in  England  1  And  will  you 
preserve  unto  the  bishops  and  clergy  of  England,  and  to  the  church  there 
committed  to  their  charge,  all  such  rights  and  privileges  as  by  law  do,  or 
shall,  appertain  to  them,  or  any  of  them  ? 

King. — All  this  I  promise  to  do. 

The  anointing  follows,  and  is  the  consecration  of  the  King,  his  hallow- 
ing and  setting  apart  for  the  work  of  government,  by  conferring  upon  him 
spiritual  gifts.  In  the  Anglican  Church,  it  is  held  that  through  this  rite 
the  Sovereign  is  of  the  clergy  as  well  as  of  the  laity,  and  that  he  thus 
becomes  indued  with  spiritual  jurisdiction. 

There  is  a  form  for  the  blessing  of  the  oil,  and  the  actual  anointing 
•consists  in  pouring  some  of  the  oil  into  a  spoon,  and  with  it  anointing,  in 
the  form  of  a  cross,  on  the  head,  breast,  and  the  palms  of  both  hands. 
After  the  anointing,  His  Majesty  was  invested  with  the  sacred  and 
symbolic  vestments  and  insignia  of  his  royal  state. 

The  ceremonies  that  follow  after,  until  the  homage,  are  the  presenting 
•of  the  spurs  and  sword  of  State,  the  offering  of  the  latter  on  the  altar  in 
its  scabbard,  its  redemption  by  a  price  from  the  altar,  its  unsheathing  and 
subsequent  bearing  uncovered  before  the  King  during  the  rest  of  the 
ceremony;  then  the  investing  with  the  royal  robe,  the  delivery  of  the 
orb,  and  the  investiture  with  the  ring  as  "  the  Ensign  of  Kingly  Dignity 
and  of  defence  of  the  Catholic  Faith,"  and  with  the  sceptre  as  "  the 
Ensign  of  Kingly  Power  and  Justice."  The  sceptre  is  delivered  after 
the  presentation  of  the  glove  by  the  Lord  of  the  Manor  of  Worksop, 
who  claims  to  hold  an  estate  by  rendering  this  office  at  the  coronation. 

After  the  presentation  of  the  sceptre  comes  the  actual  putting  on  of 
the  crown  by  the  Archbishop. 

The  ancient  crown  of  King  Edward  the  Confessor  was  used  in  the 
coronation  of  many  of  the  early  ^Cings,  and  the  crowns  actually  used 
continued  to  be  known  by  that  name;  a  new  state  crown  was  made  for 
the  coronation  of  Queen  Victoria. 

The  presenting  of  a  Bible  (another  feature  in  the  ordination  of  a 
bishop)  followed,  and  the  benediction,  and  Te  Deum. 

The  inthronisation  then  takes  place,  and  then  the  homage  by  the 
peers  is  performed  with  special  forms  for  every  class  of  the  peers 
spiritual  and  temporal.  Queen  Alexandra  was  then  anointed,  crowned, 
and  inthroned. 

Then  the  King  and  Queen  communicated  and  the  religious  part  of  the 
proceedings  ended  with  the  final  prayers. 


516  SOVEEEIGNTY 

See  Crown,  and  other  articles  there  mentioned  relating  to  the  King ; 
Allegiance;  Eoyal  Family. 

[Authorities.  —  Those  above  cited ;  £nc]/.  Brit.,  "  Coronation," 
"  Eegalia ; "  London  Gazette,  October  29,  1902  ;  Annual  Begister  for 
1902,  pp.  196  et  seq.] 

Sovereignty.— See  State. 

SpSlin. — Area. — The  total  area  of  Continental  Spain,  including 
the  Balearic  and  Canary  Islands,  is  about  196,171  square  miles,  or 
about  half  as  large  again  as  the  United  Kingdom. 

Earlier  History. — The  Eoman  domination  over  Spain  and  its  Celt- 
iberian  inhabitants  was  terminated  at  the  commencement  of  the  5th 
century  by  a  Vandal  invasion  and  a  Gothic  monarchy,  which  was 
destroyed  by  the  Arabs  in  711,  who  rapidly  conquered  the  whole 
country.  Its  complete  re-conquest  by  the  Christians  took  nearly  eight 
centuries,  but  by  1237  nothing  was  left  of  the  Mahommedan  power 
except  the  kingdom  of  Granada,  which  remained  Moorish  until  1492. 
In  the  meantime  Portugal  {q.v.)  had  become  an  independent  kingdom, 
and  the  various  Spanish  kingdoms  had  become  consolidated,  though 
Aragon  and  Navarre  still  retained  their  separate  cortes  and  privileges. 

Growth  of  Spanish  Empire. — From  the  latter  part  of  the  15th 
century,  and  during  the  greater  part  of  the  16th  century,  the  Spanish 
power  grew  until  it  became  the  greatest  in  Europe.  Spain,  to  which 
Portugal  {q.v.)  was  added  in  1580,  Sicily,  a  great  part  of  Italy,  Holland 
and  Belgium,  Bohemia,  Hungary,  Austria  and  Transylvania,  the  whole 
of  south  and  central  America,  and  the  western  portion  of  what  is  now 
the  United  States,  besides  Florida,  formed  the  first  empire,  on  which 
the  sun  never  set.  But  the  war  in  the  Netherlands,  which  led  to  their 
independence,  the  defeat  of  the  Spanish  Armada,  the  expulsion  of  the 
hard-working  Moriscos  early  in  the  17th  century,  and  the  riches  of 
America,  which  tended  to  make  the  Spanish  effete,  all  helped  to  under- 
mine the  Spanish  power,  which  now  began  to  decay. 

Decay  of  Spanish  Power. — In  1640  Portugal  recovered  independence 
and  with  it  Brazil,  in  1667  France  took  Burgundy  (now  Franche 
Comte),  and  early  in  the  18th  century  Spain  was  left  only  with  her 
remaining  American  possessions.  In  the  19th  century  Spain  was  the 
scene  of  the  Peninsular  War,  and  in  1808  Napoleon  placed  his  brother 
on  the  Spanish  throne,  but  a  few  years  later  the  French  were,  by 
English  aid,  expelled  from  Spain.  Between  1818  and  1821  Spain  lost 
nearly  the  whole  of  her  empire  in  the  New  World,  and,  under  civil  wars, 
she  sunk  lower  and  lower.  In  1898,  after  the  Spanish- American  War, 
Spain  was  compelled  to  cede  Porto  Eico,  the  Philippine  and  Sulu 
Islands,  and  Guam,  the  largest  of  the  Ladrone  Islands,  to  the  United 
States  {q.v.),  and  a  year  later,  by  the  Treaty  of  February  8,  1889,  the 
remaining  Ladrone  Islands,  together  with  the  Caroline  and  Pelew 
Islands,  were  ceded  to  Germany  (see  German  Empire),  so  that  Spain 
has  only  a  few  colonies  in  the  north  and  west  of  Africa  and  certain 
interests  in  Morocco. 

Constitution. — The  present  Constitution,  promulgated  by  Decree  of 
June  30,  1876  (Hertslet's  State  Papers,  vol.  Ixvii.  p.  118),  and  there- 
under the  executive  authority  is  vested  in  the  King,  who  acts  through 
a  Council  of  nine  responsible  ministers  (Art.  49),  and  the  legislative  in 
the  Cortes  with  the  King  (Art.  18).     The  Cortes  consists  of  two  bodies 


SPAIN  517 

equal  in  power  (Art.  19),  a  Senate  and  Congress.  There  are  three  classes 
of  Senates,  viz.: — (1)  Senators  in  their  own  right  (i.e.  Grandees  and 
High  Officers  and  Officials);  (2)  Senators  (not  exceeding  100,  nominated 
for  life  by  the  King  (classes  1  and  2  must  not  exceed  180));  and  (3) 
180  Senators  elected  by  the  State  Corporations  and  the  largest  payers 
of  contributions,  of  whom  half  retire  quinquennially  (Art.  20-26).  The 
Congress  consists  of  406  Deputies,  elected  for  five  years.  Deputies 
must  be  twenty-five  years  of  age,  and,  though  unpaid,  have  travelling 
privileges.  The  electorate  consists  of  all  male  Spaniards  of  twenty-five 
years  of  age,  enjoying  full  civil  rights  and  having  been  citizens  of  a 
municipality  for  two  years.  Congress  can  impeach  Ministers  before  the 
Senate. 

Local  Administration. — For  administrative  purposes  Spain  was  in 
1849  divided  into  Provinces  and  Communes.  Each  of  the  Provinces 
(now  forty-nine  in  number)  has  its  own  Parliament,  "  the  Diputacion 
Provincial,"  the  members  of  which  are  elected  by  the  constituencies ;  it 
meets  annually  and  is  permanently  represented  by  a  committee,  the 
"  Commission  Provincial,"  elected  annually.  Every  Commune  has  its 
Ayuntamiento,  composed  of  from  five  to  thirty-nine  Eegidores  and 
presided  over  by  the  Alcalde,  who  is  appointed  by  the  Eegidores  from 
among  themselves  and  is  the  executive  functionary.  The  whole 
municipal  government,  together  with  the  power  of  taxation,  rests  with 
the  Ayuntaniientos,  half  of  whose  members  are  elected  biennially,  but 
cannot  seek  re-election  for  two  years.  These  arrangements  were  pre- 
served by  the  Constitution  of  1876  (Arts.  82-84). 

Laws. — Under  the  1876  Constitution  tlie  laws  for  the  whole  king- 
dom are  to  be  uniform  (Art.  75).  The  Civil  Code  (based  on  the  French 
model)  was  put  into  force  on  May  1,  1889,  for  the  whole  of  Spain ;  the 
penal  code  dates  from  1870,  and  has  been  subsequently  modified ;  the 
code  of  civil  procedure,  from  April  1881 ;  and  the  code  of  criminal 
procedure,  from  June  22, 1882.  There  is  also  a  commercial  code,  dating 
from  August  22,  1885;  and  a  military  penal  code  of  1884.  The  lei/ 
hipotecaria  of  1861  provides  a  simple  form  of  land  registration,  which 
is  also  in  force  in  all  the  South  American  republics.  An  interesting 
account  of  the  source  of  Spanish  law,  and  of  the  earlier  attempts  at 
codification,  is  given  in  Colonial  Laws  and  Courts  (1907),  pp.  29-33. 

Courts  of  Law. — There  is  a  Supreme  Court  in  Madrid  modelled  upon 
the  French  Cour  de  Cassation,  which  rules  on  points  of  law,  on  appeals 
being  made  from  the  decisions  of  inferior  Courts,  or  when  conflicts  arise 
between  civil  and  military  jurisdiction.  There  is  a  Court  of  first 
instance  in  each  of  the  495  legal  districts  into  which  Spain  is  divided, 
from  which  appeals  lie  to  the  Court  of  Appeal,  avdiencias  territorialis, 
of  which  there  are  fifteen  in  all.  Assizes  are  held  four  times  a  year, 
and  trial  by  jury  for  most  crimes  and  delicts  was  established  by  the  law 
of  April  20,  1888  (see  also  Arts.  74-81  of  the  Constitution). 

Application  of  Imperial  Acts. — Spain  was  a  party  to  the  Berne 
Copyright  Convention,  and  to  the  additional  Act  of  Paris  of  1896  (see 
article  Copyright,  Vol.  III.  p.  638),  and  to  the  Industrial  Property  Con- 
vention of  1883  (Hertslet's  State  Papers,  vol.  Ixxiv.  p.  44),  which  governs 
designs  as  to  Patents  (q.v.),  trade  marks,  and  copyright  in  designs. 
Anglo-Spanish  relations  as  to  these  matters  are  regulated  by  Orders 
in  Council  (St.  R.  &  0.,  Eev.  1904,  vol.  ii.,  "Copyright,"  pp.  1,  13;  ibid., 
vol.  ix.,  "  Patents,  etc.,"  p.  5). 

Extradition  (q.v.)  with  Spain  is  regulated  by  the  Treaties  of  June  4, 

/ 


518  SPAIN" 

1878,  and  February  19,  1889  {ibid.,  vol.  v.,  "  Fugitive  Criminal,"  pp.  239, 
249). 

As  to  ships  and  shipping,  provision  was  made  by  Order  in  Council 
of  January  23, 1860  {ibid.,  vol.  viii.,  "  Merchant  Shipping,"  p.  89),  for  the 
apprehension  and  carrying  back  to  their  ships  of  seamen  deserting  from 
Spanish  ships  in  any  part  of  His  Majesty's  dominions.  Spain  has 
adopted  the  existing  British  rules  for  the  measurement  of  sailing  and 
steam  ships'  tonnage,  and  it  is  accordinglv  provided  by  Orders  in 
Council  of  March  17, 1875,  and  January  29, 1904  {ibid.,  p.  17,  St.  R.  &  0., 
1904,  p.  552),  that  Spanish  ships  need  not  be  remeasured  in  any  part  or 
place  in  His  Majesty's  dominions,  but  that  their  certificates  of  registry 
shall  be  evidence  of  their  tonnage.  The  British  regulations  of  1896  for 
preventing  collisions  at  sea  apply  to  Spanish  ships,  whether  within 
British  jurisdiction  or  not  (St.  R.  &  0.,  Rev.  1904,  vol.  viii.,  "Merchant 
Shipping,"  p.  246),  except  as  regards  lights  on  fishing  boats,  with  regard 
to  which  Art.  10  of  the  British  Rules  of  1879  apply  (ibid.,  p.  246). 

Treaties  with  Spain  for  the  abolition  of  the  slave  trade  were 
carried  into  effect  by  5  Geo.  iv.  c.  113,  and  6  &  7  Will.  iv.  c.  6,  which, 
in  common  with  other  Acts,  were  repealed  and  consolidated  by  the 
Slave  Trade  Act,  1873,  37  &  38  Vict.  c.  88.  The  Treaty  with  Spain  of 
July  2,  1890,  and  the  Brussels  General  Act  for  the  suppression  of  the 
slave  trade  have  by  Orders  in  Council  {ibid.,  vol.  xi.,  "  Slave  Trade," 
pp.  1,  70)  been  brought  within  the  1873  Act. 

By  Order  in  Council  of  March  27,  1905  (St.  R.  &  0.,  1905,  p.  474), 
the  importation  of  sugar  (except  molasses  and  sugar-sweetened  pro- 
ducts) from  Spain  was  prohibited. 

The  exceptional  legislation  as  to  the  audit  of  expenditure  during  the 
Peninsular  War,  and  the  early  Acts  as  to  the  relief  of  distressed  British 
subjects  in  Spain,  are  referred  to  under  Poetugal  {q.v.). 

Colonies. — The  colonial  possessions  of  Spain  are  all  situated  in  the 
north  and  west  of  Africa  and  cover  a  total  area  of  80,580  square  miles, 
or  about  as  large  as  England  and  Scotland  together.  They  consist  of 
Rio  de  Oro  and  Adrar,  Rio  Muni  and  Cape  San  Juan,  Fernando  Po, 
Annabon,  Corisco,  Great  Elobey  and  Little  Elobey.  Spain  also  occupies 
certain  positions  in  Morocco  {q.v.). 

Bio  de  Oro  and  Adrar  stretch  south  along  the  Sahara  Coast  from 
the  south-western  frontier  of  Morocco  and  cover  an  area  of  about 
70,000  square  miles.  The  boundary  was  delimited  by  the  Franco- 
Spanish  Convention  of  March  29,  1901.  The  territory  is  under  the 
Governor  of  the  Canary  Islands,  with  a  resident  sub-governor  at  Rio  de 
Oro. 

Bio  Muni  is  on  the  Gulf  of  Guinea,  extending  from  the  Muni  to  the 
Campo  River  and  the  German  Kameruns  (see  German  Empire),  and  has 
an  area  of  about  9800  square  miles.  The  Treaty  of  June  29,  1900, 
fixed  the  Franco-Spanish  frontier.  The  territory  is  administered  by  an 
agent  who  acts  under  the  Governor  of  Fernando  Po. 

Fernando  Po,  an  island  off  the  west  coast  of  Africa,  has  an  area  of 
760  square  miles.  It  is  administered  by  a  governor,  generally  a  Spanish 
naval  officer,  who  is  in  command  of  the  naval  station  in  the  Gulf  of 
Guinea  and  superintends  the  sub-governor  of  the  Island  of  Little  Elobey, 
and  the  Spanish  agents  in  Annabon,  Great  Elobey,  and  Bio  Muni  (see 
above).  A  Council  of  officials  assist  the  Governor  of  Fernando  Po  in 
the  government  of  the  colony. 

[See  Statesman  s  Year-Book  ;  Encyclopaedia  Britannica.] 


SPEAKEE  OF  THE  HOUSE  OF  COMMONS  519 

Spa.nish  La.W. — In  Trinidad  and  some  other  parts  of  the 
British  Empire,  the  Spanish  law  is  still  occasionally  referred  to.  In 
Spain,  as  in  England  and  France,  local  customs  (fueros)  form  the 
historical  basis  of  the  law.  Alfonso  x.,  "the  Wise,"  of  Castille  (1252- 
84),  endeavoured  to  provide  his  subjects  with  a  complete  body  of  law ; 
his  Code  or  Digest,  known  as  the  Siete  Partidas,  is  "  one  of  the  great 
legislative  monuments  of  an  age  which  produced  the  Etdblissements  of 
St.  Louis  and  the  Statutes  of  Edward  i. ; "  it  was  not  accepted  by  the 
Cortes  until  1348.  The  laws  introduced  by  Spain  into  her  American 
colonies  were  contained  in  the  collection  known  as  the  Recopilacion,  of 
which  various  editions  were  published.  The  colonial  policy  of  the 
Spanish  Government  aimed  at  the  exclusion  of  other  nations ;  and  the 
Spanish  law  was  to  some  extent  disregarded  by  the  Dutch  and  the 
English  when  they  took  possession.  An  interesting  point  of  Spanish 
colonial  law  was  discussed  in  General  Pictons  Case,  1804-12,  30  St.  Tri. 
225,  and  in  Hill  v.  Bigge,  1841,  3  Moo.  P.  C.  465  (see  the  article 
Colony). 

[Authorities. — Burge,  Foreign  and  Colonial  Laws,  2nd  ed.,  vol.  i., 
1907,  and  works  cited  above.] 

Speaker  of  the  House  of  Commons.— In  order  to 

enforce  the  forms  and  rules  of  the  House  of  Commons,  and  to  act  as 
its  organ  and  mouthpiece  in  all  matters,  a  Speaker  is  chosen  by  the 
Commons  at  the  commencement  of  every  new  Parliament,  or  when  a 
vacancy  occurs  by  death  or  otherwise.  The  member  chosen  for  this 
high  and  honourable  ofhce  is  styled  "  The  Speaker,"  because  it  is  his 
business  to  speak  to  or  address  the  Sovereign  in  the  name  of  the  House, 
when  occasion  requires;  and  during  his  absence,  except  when  he  is 
represented  by  a  deputy,  no  business  can  be  transacted  by  the  House, 
nor  any  question  moved  but  that  of  adjournment. 

1.  As  to  his  Election  and  Presentation.  —  The  Parliament  having 
assembled,  the  Commons  are  commanded  by  the  Commissioners,  in  the 
name  of  the  Sovereign,  to  choose  a  Speaker,  and  present  him  for  the 
royal  approbation  on  a  certain  day  (generally  the  next  day) ;  and  the 
Commoners  being  assembled  in  their  House,  a  member  moves  the 
appointment  of  one  of  their  number.  The  forms  of  the  election  require 
that  the  person  proposed  should  be  present  in  the  House  when  he  is 
nominated ;  and  it  is  to  be  desired,  in  order  to  avoid  future  incon- 
venience and  trouble,  that  he  be  a  member  upon  whose  seat  there  is  no 
probability  of  a  question  arising. 

When  one  person  alone  is  proposed,  and  no  objection  is  made  to  him, 
it  is  not  usual  to  put  any  question  to  the  House,  and  the  members  pro- 
posing conduct  him  at  once  to  the  chair.  If,  however,  any  objection  be 
made,  and  any  other  person  proposed,  the  sense  of  the  House  must  be 
taken  by  a  question  thereon,  which  is  put  by  the  Clerk.  On  a  division 
upon  the  question  for  a  Speaker,  the  House  divides,  as  in  Committee,  to 
the  right  and  left,  and  tellers  are  appointed  by  the  Clerk.  As  soon  as 
the  Speaker  is  chosen  and  in  the  chair,  the  mace  should  be  laid  upon 
the  table,  for  the  House  cannot  proceed  to  the  election  of  a  Speaker 
without  it. 

When  a  Speaker  has,  from  continued  illness,  been  unable  to  discharge 
the  duties  of  his  office,  the  House  have  discharged  him  and  elected  another 
— as  in  the  case  of  Sir  John  Cheney  (1  Hen.  iv.)  and  Sir  John  Tyrrell 
(Jan.  27, 1656).    A  Speaker  who  had  offended  the  House  by  an  indiscreet 


520  SPEAKER  OF  THE  HOUSE  OF  COMMONS 

speech  was  discharged  (Stourton,  1  Hen.  v.).  Speakers  elected  on  vacan- 
cies should  be  presented  to  the  Sovereign  for  approval,  but  they  should 
not  re-demand  the  privileges  of  the  House,  which,  being  a  demand  of 
right,  should  be  made  but  once,  viz.,  at  the  beginning  of  a  Parliament. 

The  old  form  of  procedure  in  the  ceremonies  connected  with  the 
election  of  a  Speaker  was  for  him,  when  chosen,  to  be  presented  to  the 
Sovereign  in  the  House  of  Lords,  and  for  form's  sake  to  excuse  himself ; 
or,  as  it  is  more  quaintly  expressed,  "  to  disable  himself,"  and  to  express 
a  diffidence  of  his  capacity  to  exercise  so  great  a  trust.  To  the  Speaker's 
excuse  the  Chancellor  was  accustomed  to  reply  in  an  answer  of  compli- 
ment and  encouragement;  but  he  now  shortly  informs  the  Commons 
of  the  approval  of  the  Sovereign.  Instances,  however,  have  occurred 
of  the  Sovereign  exercising  the  prerogative  in  refusing  to  approve  of 
the  Speaker,  or  in  accepting  his  excuses — as  in  the  case  of  Sir  John 
Popham,  who  pleaded  his  age  and  was  disallowed,  and  the  cases  of  Sir 
Edward  Seymour  (in  1678),  and  of  M.  Papineau,  in  Lower  Canada,  who 
were  not  accepted. 

The  Speaker  then  claims  from  the  Sovereign  the  ancient  privileges 
of  the  Commons.  "  Such  petition  or  prayer,"  says  Hatsell,  "  was  con- 
sidered as  a  public  claim  and  notification  to  the  King  and  to  the  people 
of  the  privileges  of  the  House  of  Commons,  solemnly  made  in  order  that 
no  man  might  plead  ignorance."     The  privileges  claimed  are : — 

(1)  Freedom  from  arrest  and  disturbances ;  (2)  freedom  of  speech 
in  their  own  House ;  (3)  free  access  to  His  Majesty ;  (4)  that  all  their 
proceedings  may  receive  a  favourable  construction. 

In  addition  to  these  claims.  Sir  Arnold  Savage  (5  Hen.  iv.)  further 
asked  of  the  King,  in  the  name  of  the  Commons,  that  they  might  freely 
make  complaint  of  anything  amiss  in  the  Government,  and  that  the 
King,  by  the  sinister  information  of  anyone,  would  not  take  offensively 
that  which  they  should  complain  of — which  was  granted  by  the  King, 
and  acted  upon  two  years  after.  And  Sir  John  Tiptoft  also  (7  Hen.  iv.) 
asked  further,  that  if  any  writing  were  delivered  by  the  Commons  during 
the  Parliament,  and  they  should  desire  to  have  it  again  to  amend  any- 
thing therein,  it  might  be  restored  to  them,  which  was  granted;  of 
which  Hakewill  says,  that  "  never  any  Speaker  did  the  like  before  or 
since." 

But  it  is  now  the  practice  for  the  Speaker  to  petition  the  Sovereign 
in  general  terms  for  all  the  ancient  privileges  of  the  Commons.  Since 
the  parliamentary  declaration  of  the  rank  of  the  Speaker,  contained  in 
1  Will.  &  Mary,  c.  21,  "  the  Lords  Commissioners  for  the  office  of  Lord- 
Chancellor,  or  keeper  of  the  Great  Seal,  shall  have  precedence  next  after 
the  Peers  of  the  realms  and  the  Speaker  of  the  House  of  Commons,"  the 
Speaker  has  constantly  taken  place  next  to  the  Peers,  both  in  Parlia- 
ment and  during  the  recess.  He  is  the  great  functionary  of  the 
Commons ;  indeed,  this  branch  of  the  legislature  is  in  most  respects 
regulated  by  him. 

2.  As  to  his  Duties. — These  consist  in  the  following : — 

(1)  To  take  the  chair,  which  he  cannot  do  until  there  is  a  quorum  ; 
and  to  adjourn  the  House  if  there  be  not  a  quorum,  without  a  question 
first  put.  Also,  to  resume  the  chair  in  the  midst  of  a  Committee  for 
the  same  reason. 

(2)  To  maintain  order,  and  to  rule  on  all  points  of  order  and  pro- 
cedure ;  to  name  a  disorderly  member,  who  then  receives  the  censure 
of  the  House.     Also,  to  thank  and  reprimand  members,  and  to  be  the 


I 


SPEAKER  OF  THE  HOUSE  OF  COMMONS  521 

mouthpiece  of  the  House  when  it  comes  in  contact  with  persons  not 
of  it. 

(3)  To  make  a  plain  and  short  narrative  of  the  effect  and  objects 
of  every  bill  before  the  House,  from  a  breviate  to  be  given  him  for  that 
purpose,  but  not  to  dissuade  or  persuade. 

(4)  To  put  the  House  in  mind  of  the  sitting  of  Committees,  and 
other  things  necessary  for  their  information,  and  to  state  to  the  House 
whether  any  alterations  that  may  be  made  by  the  Lords  to  a  money 
bill  entrench  on  the  privileges  of  the  Commons. 

(5)  To  report  to  the  House  the  royal  speech ;  and  to  address  the 
Sovereign  on  delivering  the  Bills  of  Supply  on  the  last  day  of  the 
session,  or  any  bill  for  the  particular  service  of  the  Crown  during  the 
session. 

(6)  To  present  addresses  to  the  Sovereign  passed  by  the  House. 

(7)  To  attend  the  House  of  Lords  with  members  of  the  Commons 
to  hear  the  Royal  assent  given  to  bills,  a  formal  act  usually  performed 
by  Lords  Commissioners  appointed  by  the  Crown  for  the  purpose. 

(8)  By  virtue  of  24  Geo.  ill.  c.  26,  amended  by  26  Vict.  c.  20,  to  issue 
his  warrant  during  the  recess,  upon  due  notice  being  given  by  a  certifi- 
cate signed  by  two  members,  for  the  election  of  a  new  member  in  the 
place  of  one  who  may  vacate  his  seat  by  death  or  by  the  acceptance  of 
a  peerage ;  but  this  does  not  extend  to  any  case  where  there  is  a  petition 
depending  for  such  vacant  seat,  or  where  the  writ  for  the  late  member 
has  not  been  returned  fifteen  days  before  the  end  of  the  last  sitting  of 
Parliament,  or  when  the  new  writ  cannot  issue  before  the  next  meeting 
of  the  House  for  despatch  of  business.  The  Speaker  also  issues  his 
warrant  for  anew  member  under  21  &  22  Vict.  c.  110,  on  the  acceptance 
by  a  member  of  an  office  under  the  Crown ;  also  under  the  Bankruptcy 
Act,  1883,  s.  33,  in  the  event  of  bankruptcy;  and  under  the  Lunacy 
(Vacating  of  Seats)  Act,  1886,  in  the  case  of  lunacy  of  a  member  of  the 
House. 

The  Speaker  is  the  servant  of  the  House,  and  is  to  obey  implicitly 
its  orders,  without  attending  to  any  other  commands.  In  matters  of 
difficulty,  or  if  he  be  referred  to,  to  inform  the  House  on  a  point  of  order 
or  practice,  it  is  his  duty  to  state  everything  he  knows  from  the  journals 
or  the  history  of  Parliament,  but  not  to  draw  conclusions.  In  short,  he 
has  no  voice  but  to  declare  the  sentiments  of  the  House  when  he  has 
ascertained  them. 

Lenthall,  Speaker  of  the  House  of  Commons,  when  commanded  by 
Charles  i.  to  disclose  certain  transactions  in  the  House,  replied,  "  That 
he  had  neither  eyes  to  see,  ears  to  hear,  nor  mouth  to  speak,  but  as  the 
House  should  direct  him." 

The  Speaker  has  the  assistance  of  a  Secretary  and  a  Counsel,  the 
former  being  concerned  with  ceremonial  duties  and  the  admission  of 
strangers  to  hear  debates,  while  the  latter  is  a  lawyer  of  experience 
whose  time  is  devoted  to  advising  the  Speaker  and  other  Officers  of  the 
House  on  matters  of  procedure  connected  with  private  bill  legislation, 
as  in  the  last  resort  it  is  left  to  the  chair  to  decide  whether  a  bill  shall 
be  introduced  according  to  the  rules  laid  down  for  private  or  public 
legislation. 

3.  When  the  Speaker  takes  the  chair  for  the  first  time  he  leaves  all 
questions  of  party  behind  him.  He  must  be  and  usually  is  entirely 
impartial,  his  only  concern  being  the  expeditious  and  orderly  conduct 
of  the  business  of  the  House  in  accordance  with  the  rules  and  precedents 

/ 


522  SPEAKER  OF  THE  HOUSE  OF  LORDS 

adopted  by  it.  Though  entitled  to  speak  and  vote  like  any  other  member 
in  Committees  of  the  whole  House,  of  late  years  this  right  has  not  been 
exercised,  probably  because  some  question  of  possible  partiality  might 
afterwards  arise  (May's  Parliamentary  Practice,  p.  368).  Even  though 
he  be  elected  by  a  party  vote  he  is  invariably  accepted  by  the  other 
party  when  they  come  into  office  in  a  new  Parliament,  and  it  has  become 
the  practice,  seldom  departed  from,  for  a  constituency  to  return  its  member 
unopposed  should  he  be  elected  Speaker. 

The  emoluments  of  the  Speaker  formerly  did  not  amount  to  more 
than  £3000  per  annum ;  in  consequence  of  which  some  Speakers  held 
other  offices  under  the  Crown  at  the  same  time.  The  House  became  at 
length  sensible  of  the  inadequacy  of  the  salary,  and  doubled  it.  By  4  &  5 
Will.  IV.  c.  70  the  salary  was  reduced  to  £5000,  at  which  it  still  stands. 
Moreover,  the  Speaker  has  the  house  attached  to  the  House  of  Commons 
to  reside  in ;  on  all  State  occasions  he  has  an  escort  of  one  Lifeguards- 
man  ;  when  proceeding  to  a  levie,  he  alone  has  the  right  to  proceed  in 
the  centre  of  the  Mall ;  and  both  summer  and  winter  he  has  the  right 
to  a  buck  and  doe  from  the  royal  forest.  The  work  of  a  Speaker  during 
recent  years  has  become  increasingly  heavy  and  arduous  and  the  office 
is  seldom  held  by  one  man  for  more  than  ten  years.  When  after  some 
length  of  service  a  Speaker  retires  it  is  customary  for  the  Crown  to 
bestow  upon  him  the  honour  of  a  Viscounty,  and  in  addition  the  House 
of  Commons  usually  agrees  to  the  grant  of  a  life  pension. 

Formerly  there  was  no  provision  for  supplying  the  place  of  the 
Speaker  in  case  of  his  absence  through  illness  or  otherwise,  and  thereby 
considerable  inconvenience  frequently  arose.  It  was  not,  however,  until 
1855  that  any  change  was  made.  In  that  year,  after  the  report  of  a 
select  committee  specially  appointed  to  consider  the  question,  a  standing 
order  was  adopted  by  means  of  which  the  Chairman  of  Ways  and  Means, 
as  Deputy-Speaker,  is  enabled  to  take  the  chair  during  the  unavoidable 
absence  of  the  Speaker.  In  1902  a  Deputy-Chairman  of  Ways  and  Means 
was  appointed,  and  by  a  standing  order  of  that  year  he  is  enabled  in  the 
absence  of  both  his  seniors  to  act  as  Deputy-Speaker  (see  May,  ibid. 
pp.  196,  197,  and  notes). 

[Authorities. — Erskine  May's  Parliamentary  Practice ;  Anson's  Laio 
and  Custom  of  the  Constitution.] 

Speaker  of  the  House  of  Lords.— This  officer  is  the 

Lord  High  Chancellor,  or  the  Lord  Keeper  of  the  Great  Seal  (the  latter 
being  in  existence  only  when  there  is  no  Lord  High  Chancellor).  The 
Lord  Chancellor  or  Lord  Keeper  sits  as  Lord  Speaker  or  Prolocutor  of  the 
House  of  Lords  by  prescription,  a  custom  is  confirmed  by  Standing  Order 
No.  5  of  the  House.  If  he  be  absent,  or  there  is  no  one  authorised 
under  the  Great  Seal  as  Lord  Chancellor  or  Lord  Keeper,  then  the  House 
elects  its  own  Speaker  during  the  vacancy.  The  Speaker  of  the  Lords 
need  not,  as  is  the  rule  in  the  Commons,  be  a  member  of  the  House. 
There  are  instances  of  both  Lords  Chancellors  and  Lords  Keepers  sitting 
as  Speaker  while  still  commoners  (Campbell's  Lives  of  the  Chancellors, 
V.  188;  63  Lords  Journals,  114;  May's  Parliamentary  Practice,  p. 
189?i.). 

Deputy-Speakers  are  appointed  by  Commission  to  officiate  in  the 
absence  of  the  Lord  Chancellor  (or  the  Lord  Keeper).  In  the  absence 
of  all  named  in  the  Commission  the  Lords  themselves  appoint  a  Speaker 
yro  tempore^  but  all  deputies  or  jpro  tempore  Speakers  give  way  to  their 


I 


SPECIAL  BAILIFF  523 

seniors  when  present  (80  Lords'  Journals,  10  ;  56  ibid.,  39 ;  63  ibid., 
511 ;  97  iUd.,  639;  119  ibid.,  28;  136  iUd.,  198). 

Standing  Order  20  defines  the  duties  of  the  Lord  Speaker  as  follows: — 
"  The  Lord  Chancellor,  when  he  speaks  to  the  House,  is  always  to 
speak  uncovered,  and  is  not  to  adjourn  the  House,  or  to  do  anything 
else  as  Mouth  of  the  House  without  the  consent  of  the  Lords  first 
had,  except  the  ordinary  thing  about  bills,  which  are  of  course,  wherein 
the  Lords  may  likewise  overrule;  as  for  preferring  one  bill  before 
another,  and  such-like ;  and  in  case  of  difference  among  the  Lords,  it 
is  to  be  put  to  the  question,  and  if  the  Lord  Chancellor  will  speak  to 
anything  particularly,  he  is  to  go  to  his  own  place  as  a  peer." 

Thus  the  Speaker,  as  such,  is  a  mere  machine  to  carry  on  the  busi- 
ness of  the  House,  and  while  so  doing  he  sits  on  the  Woolsack,  which 
is  technically  outside  the  House.  He  is  avowedly  partial,  being  always 
a  member  of  the  Government,  and  speaks  frequently  for  Government 
measures  from  his  ordinary  place  in  the  House.  He  has  no  power  to 
interpret  the  rules  or  procedure  of  the  House,  it  being  its  own  interpreter 
exclusively  in  all  such  matters. 

Several  attempts  have  been  made  to  invest  the  Speaker  with  greater 
powers  as  to  order  and  interpretation  of  rules,  one  so  recently  as  the 
session  of  1908,  but  the  sense  of  the  House  has  always  been  strongly 
Against  alteration,  it  being  pointed  out  that  the  Speaker  of  the  Lords  is 
not  like  the  Speaker  of  the  Commons,  an  impartial  judge  and  a  man  of 
wide  experience  in  his  House,  but  a  partisan,,  and  among  the  most  junior 
peers  in  point  of  membership  of  the  House. 

See  May's  Parliamentary  Practice. 

Specia.1  Acts. — Blackstone  says  that  statutes  are  either  general 
or  special,  public  or  private.  Special  or  private  Acts  are  rather  excep- 
tions than  rules,  being  those  which  only  operate  upon  particular  persons 
and  private  concerns.  He  gives  as  an  instance,  an  Act  to  enable  the 
Bishop  of  Chester  to  make  a  lease  to  A.  B.  for  sixty  years,  which  is  an 
exception  to  the  general  law  laid  down  in  the  Act,  13  Eliz.  c.  10,  a  public 
Act  by  which  spiritual  persons  were  prevented  for  making  leases  for 
longer  terms  than  twenty-one  years  or  three  lives  (see  Black.  Com.,  i. 
pp.  85,  86).  An  Act  directed  towards  a  special  object  or  special  class 
of  objects  will  not  be  repealed  by  a  subsequent  general  Act  embracing 
in  its  generality  those  particular  objects,  unless  some  reference  be  made 
directly  or  by  necessary  inference  to  the  preceding  special  Act  (see 
Garnett  v.  Bradley,  1878,  3  App.  Cas.,  at  p.  950).  The  expression  "  the 
special  Act "  is  used  in  the  Companies  Clauses  Consolidation  Act,  1845, 
the  Lands  Clauses  Consolidation  Act,  1845,  and  the  liailways  Clauses 
Consolidation  Act,  1845,  to  indicate  an  Act  passed  for  the  purposes  of  a 
particular  undertaking,  and  which  incorporates  the  said  Acts. 

[Authorities. — Hardcastle  on  Statutes;  Maxwell,  Interpretation  of 
Statutes ;  Brown  and  Theobald  on  Railways.^ 

Special  Agent. — See  Principal  and  Agent. 

Special  Bail. — See  Bail  Piece. 

Special  Bailiff. — Where  the  high  bailiff  of  a  County  Court  is 
himself  the  judgment  debtor  against  whom  process  has  to  be  issued, 
special  bailiffs  are  appointed  for  the  purpose  of  executing  the  writ.     It 

/ 


524  SPECIAL  BASTARD 

seems  not  quite  clear  whether  a  warrant  to  one  person  is  sufficient,  but  in 
Bellamy  v.  Hoyle,  1875,  L.  R.  10  Ex.  220,  a  warrant  issued  to  "  R.  and 
others  "  was  held  good  (see  Annual  County  Courts  Practice). 

Specia.1  Bastd-rd. — A  child  born  of  parents  before  marriage, 
the  parties  afterwards  intermarrying.  In  Scotland,  and  in  various  other 
countries,  a  bastard  is  legitimated  by  the  subsequent  marriage  of  his 
parents ;  this  rule,  however,  does  not  obtain  in  England,  where  the  law 
is  "  once  a  bastard,  always  a  bastard."     See  Bastakd. 

Specia.1  Ca.se. — The  Rules  under  the  Judicature  Acts  provide 
that  the  parties  to  any  cause  or  matter  may  concur  in  stating  the 
questions  of  law  arising  therein,  in  the  form  of  a  special  case  for  the 
opinion  of  the  Court  (Order  34,  r.  1).  Having  regard  to  the  definitions 
of  the  terms  "cause"  and  "matter"  in  sec.  100  of  the  Judicature  Act, 
1873,  it  is  clear  that  a  special  case  may  be  stated  in  any  proceeding  in 
Court,  whether  it  be  a  suit  or  not.  A  special  case  may  be  stated  by 
a  referee  under  Order  36,  r.  52;  or  in  interpleader  under  Order  57, 
r.  9.  By  Crown  Office  Rules,  1906,  r.  129,  Order  34,  so  far  as  applicable, 
applies  to  all  civil  proceedings  on  the  Crown  side. 

Besides  a  special  case  stated  by  agreement  between  the  parties, 
power  is  given  to  the  Court,  where  it  appears  that  there  is  in  any  cause  or 
matter  a  question  of  law  which  it  would  be  convenient  to  have  decided 
before  any  evidence  is  given,  or  any  question  or  issue  of  fact  is  tried,  to 
direct  such  question  of  law  to  be  raised  by  special  case,  or  in  such  other 
manner  as  the  Court  or  judge  may  deem  expedient  (Order  34,  r.  2). 

Under  this  rule  only  such  questions  of  law  can  properly  be  raised  as 
must  necessarily  arise  in  the  action  {RepuUic  of  Bolivia  v.  Bolivian 
Navigation  Co.,  1876,  24  W.  R.  361). 

Under  Turner's  Act,  13  &  14  Vict.  c.  35,  the  Court  of  Chancery 
would  not  decide  fictitious  questions  {Bright  v.  Tyndall,  1876,  4  Ch.  l3. 
189 ;  Pryse  v.  Pryse,  1872,  L.  R.  15  Eq.  86) ;  nor  make  binding  declara- 
tions of  future  rights  {Burt  v.  Start,  1853,  1  W.  R.  145 ;  Greenwood  v. 
Sutherland,  1853,  10  Hare,  App.  1,  xii. ;  68  E.  R.  1120);  nor  make  an 
order  on  a  partial  or  garbled  statement  of  facts  {Bulkeley  v.  Hope,  1856, 
8  De  G.,  M.  &  G.  36 ;  44  E.  R.  302). 

The  judge  has  power  under  this  rule,  after  writ  and  appearance,  and 
before  delivery  of  statement  of  claim,  to  order  a  point  of  law  to  be 
decided  by  special  case ;  and  the  discretion  of  the  Court  below  will  not 
be  interfered  with  by  the  Court  of  Appeal  {Metropolitan  Board  of  Works 
V.  New  River  Co.,  1876,  2  Q.  B.  D.  67).  It  is  too  narrow  a  construction 
of  the  rule  to  limit  its  application  to  cases  in  which  the  point  of  law 
appears  on  the  record;  it  is  competent  to  the  judge  to  look  at  the 
circumstances  of  the  case  in  whatever  way  they  are  brought  to  his 
knowledge;  and  if  it  is  brought  to  his  knowledge,  whether  from  the 
statements  on  the  record  or  otherwise,  that  there  is  a  question  of  law 
which  may  be  conveniently  decided  before  the  issue  of  fact  is  tried,  he 
may  make  an  order  to  carry  that  out  (S.  C.  p.  68).  The  Court  will 
always  be  ready  in  a  proper  case  to  dispose  of  a  question  of  law  under 
this  rule  {Tattersall  v.  National  Steamship  Co.,  1884,  W.  N.  32). 

Application  to  state  Special  Case. — In  the  Chancery  Division  an 
application  to  state  a  special  case  is  made  by  motion  or  summons,  though 
it  is  almost  invariably  made  by  summons.  For  form,  see  Daniell's 
Chancery  Forms,  p.  1028.     In  the  King's  Bench  Division  the  application 


SPECIAL  CASE  525 

is  by  summons  or  notice  under  the  summons  for  directions.  For  forms, 
see  Chitty's  Forms,  p.  690.  For  forms  of  order  directing  questions  of 
of  law  to  be  set  down  for  argument  without  stating  a  special  case,  see 
Seton,  p.  366 ;  and  for  forms  of  order  for  trial  of  questions  of  law  by 
special  case,  or  otherwise,  see  Chitty's  Forms,  pp.  690,  691. 

Form  of  Special  Case. — Every  special  case  must  be  divided  into 
paragraphs  numbered  consecutively,  and  must  concisely  state  such  facts 
and  documents  as  are  necessary  to  enable  the  Court  to  decide  the 
questions  raised  thereby  (Order  34,  r.  1).  It  must  be  printed  by  the 
plaintiff,  signed  by  the  parties  or  their  counsel  or  solicitors,  and  filed 
by  the  plaintiff  (r.  3).  The  signature  of  counsel  is  not  necessary,  unless 
the  case  has  been  settled  by  him  {Hare  v.  Hare,  1876,  W.  N.  44).  For 
forms  of  special  case,  see  Daniell's  Chancery  Forms,  p.  1029;  Chitty's 
Forms,  pp.  689-691. 

Filing. — In  the  Chancery  Division  a  special  case  is  filed  in  the 
General  Filing  Department  of  the  Central  Ofhce ;  in  the  King's  Bench 
Division  it  is  filed  at  the  Crown  Office  Department,  and  is  afterwards 
transmitted  to  the  Filing  Department. 

Amendment. — A  special  case  stated  by  consent  cannot,  it  seems,  be 
amended  without  consent  after  it  has  been  signed  by  counsel  {Hamilton, 
Fraser  &  Co.  v.  Staley,  Radford  &  Co.,  1884,  28  Sol.  J.  478).  In  other 
cases  before  it  is  set  down  it  may  be  amended  by  consent  by  order  of 
course ;  if  the  parties  do  not  consent,  by  order  obtained  on  motion  or 
summons  with  notice.  Where  a  special  case  is  stated  in  an  action,  and 
a  decision  given  upon  it  under  a  mistake  of  fact,  it  cannot  be  amended ; 
but  the  Court  is  not  bound  by  the  decision  unless  it  has  been  adopted 
by  subsequent  orders,  but  may  disregard  it,  direct  the  action  to  go  to 
trial,  and  direct  inquiries  to  ascertain  the  real  facts  {In  re  Taylor's  Estate, 
Tomlin  v.  Underhay,  1882,  22  Ch.  D.  495). 

Setting  Bourn. — Where  a  married  woman  (not  being  joined  in  respect 
of  her  separate  property  or  of  any  separate  right  of  action  by  or  against 
her),  infant,  or  person  of  unsound  mind  not  so  found  by  inquisition,  is 
a  party  to  any  special  case,  it  cannot  be  set  down  without  leave  of  the 
Court,  the  application  for  which  must  be  supported  by  sufficient  evidence 
that  the  statements  contained  in  the  special  case,  so  far  as  they  affect 
the  interest  of  such  parties,  are  true  (Order  34,  r.  4).  This  rule  substan- 
tially agrees  with  sec.  13  of  Sir  G.  Turner's  Act.  For  form  of  application, 
see  Daniell's  Chancery  Forms,  p.  1030. 

Under  the  old  practice  it  was  held  that,  where  a  female  defendant 
married  after  the  case  had  been  set  down  for  hearing,  it  was  not  necessary 
to  set  it  down  again  {Johnston  v.  Brown,  1869,  L.  R.  8  Eq.  584) ;  but 
under  similar  circumstances  the  order  to  set  down  was  discliarged,  and 
the  case  directed  to  be  amended  by  adding  the  husband  as  a  party  {Atty 
v.  Ftough,  1872,  L.  E.  13  Eq.  462).  Where  an  infant  was  born  after 
the  case  had  been  set  down,  a  similar  course  was  followed  {Savage  v.  Snell, 
1871,  L.  R.  11  Eq.  264;  and  see  Barnaby  v.  Tassell,  1871,  L.  R.  11  Eq. 
363).  Either  party  may  enter  the  special  case ;  if  an  order  has  been 
obtained  under  rule  4,  a  copy  of  such  order  must  be  produced  (r.  5). 

In  the  Chancery  Division  a  special  case  is  set  down  at  the  office  of 
the  Chancery  Registrars.  In  the  King's  Bench  Division  it  is  set  down 
in  the  Crown  Office  Department.  A  fee  of  £2  is  payable  on  setting  down. 
Hearing. — Upon  the  argument  of  a  special  case  the  Court  and  the 
parties  are  at  liberty  to  refer  to  the  whole  contents  of  the  documents 
stated,  and  the  Court  is  at  liberty  to  draw  from  the  facts  and  documents 

/ 


526  SPECIAL  CASE 

stated  any  inference,  whether  of  fact  or  law,  which  might  have  been 
drawn  therefrom  if  proved  at  the  trial  (Order  34,  r.  1). 

Agreement  as  to  Payment  of  Money  and  Costs. — The  parties  to  a 
special  case  may  enter  into  an  agreement  in  writing  that,  on  the  judg- 
ment of  the  Court  being  given  in  the  affirmative  or  negative  of  the 
questions  of  law  raised  by  the  special  case,  a  sum  of  money  fixed  by  the 
parties,  or  to  be  ascertained  by  the  Court,  shall  be  paid  by  one  of  the 
parties  to  the  other  of  them,  either  with  or  without  costs  of  the  cause 
or  matter,  and  judgment  may  be  entered  accordingly  (r.  6).  The  above 
provision  is  similar  to  sec.  47  of  the  Common  Law  Procedure  Act,  1852^ 
In  the  absence  of  any  agreement,  costs  are  in  the  discretion  of  the  Court 
as  in  other  cases. 

Judgment  on  Special  Case. — Where  the  answers  to  the  special  case  in 
fact  dispose  of  the  action,  the  proper  course  is  to  take  the  answers  in  the 
shape  of  a  judgment  making  declarations  to  the  effect  of  the  answers,  and 
to  stay  further  proceedings,  and  thus  avoid  the  necessity  for  setting  the 
action  down  on  motion  for  judgment  {In  re  Cane,  1890,  60  L.  J.  Ch.  36, 
not  following  Harrison  v.  Cornwall  Minerals  Ely.  Co.,  1880,  16  Ch.  D. 
66).  For  forms  of  orders  on  special  case,  see  Seton,  p.  365 ;  Chitty's 
Forms,  p.  693. 

Appeal. — An  appeal  lies  from  the  judgment  on  a  special  case  in  the 
ordinary  way  {In  re  Taylor's  Estate,  Tomlin  v.  Underhay,  1882,  22  Ch.  D. 
495).  But  whether  a  party  to  a  special  case  who  does  not  appear  at 
the  hearing  of  the  Court  below  can  appeal  from  the  judgment,  qumre 
{Allum  V.  Dickinson,  1882,  9  Q.  B.  D.  632). 

Where  a  special  case  is  calculated  and  intended  to  raise  for  decision 
questions  of  fact  only,  the  proceedings  are  extra  cursum  curiae,  the  judg- 
ment of  the  Court  is  in  the  nature  of  an  arbitrator's  award,  and  an  appeal 
cannot  be  entertained  if  its  competency  is  objected  to  by  the  party 
holding  the  judgment  {Burgess  v.  Morton,  [1896]  A.  C.  136). 

From  a  special  case  stated  by  a  referee,  arbitrator,  or  umpire  under 
sec.  19  of  the  Arbitration  Act,  1889,  no  appeal  lies ;  for  the  jurisdiction 
of  the  Court  is  consultative  only  {In  re  Knight  and  The  Tabernacle  Per- 
manent Building  Society,  [1892]  2  Q.  B.  613 ;  In  re  Holland  Steamship 
Co.  and  Bristol  Steam  Navigation  Co.,  1906,  95  L.  T.  769 ;  Shrewsbury 
V.  Shrewsbury,  1907,  23  T.  L.  R.  224).  Where,  however,  an  arbitrator 
states  his  award  in  the  form  of  a  special  case  under  sec.  lib),  the  decision 
of  the  Court  thereon  determines  the  rights  of  the  parties,  and  from  such 
decision  an  appeal  lies  without  leave  {In  re  Kirkleatham  Local  Board 
and  Stockton  and  Middlesborough  Water  Board,  [1893]  1  Q.  B.  375).  For 
the  purpose  of  appeal  an  order  on  a  special  case  stated  by  an  arbitrator 
is  final  {Shubrook  v.  Tufnell,  1882,  9  Q.  B.  D.  621). 

Special  Case  under  Sir  C  Turner's  Act. — A  special  case  may  be  stated 
for  the  same  purposes  and  in  the  same  manner  as  was  provided  by  the 
Act  13  &  14  Vict.  c.  35  (Order  34,  r.  8).  Sir  Gr.  Turner's  Act  was  repealed 
by  the  Statute  Law  Revision  and  Civil  Procedure  Act,  1883,  46  &  47 
Vict.  c.  49.  As  to  the  provisions  of  the  Act,  see  Morgan,  pp.  403-405. 
Inasmuch  as  the  same  relief  as  was  afforded  by  the  Act  can  now  be 
obtained  by  the  procedure  by  originating  summons  under  Order  55,  it  is 
not  likely  that  any  great  use  will  be  made  of  the  provisions  of  this  rule. 
The  effect  of  the  rule,  however,  is  to  keep  alive  the  provisions  of  the  Act ; 
trustees,  therefore,  who  act  on  a  declaration  made  on  a  special  case 
stated  under  it  are,  by  sec.  15,  indemnified  {In  re  Benzon,  Forster  v. 
Schlesinger,  1886,  54  L.  T.  51). 

Other  Instances  of  Special  Cases. — A  special  case  may  be  stated  by 


SPECIAL  DAMAGE  527 

any  referee,  arbitrator,  or  umpire  under  sees.  7  and  19  of  the  Arbitra- 
tion Act,  1889,  52  &  53  Vict.  c.  49 ;  and  the  power  to  state  a  special 
case  exists  under  various  statutes,  as,  e.g.  the  Summary  Jurisdiction 
(Appeals)  Act,  1857,  20  &  21  Vict,  c,  43 ;  the  Local  Government  Act, 
1888,  51  &  52  Vict.  c.  19;  E.  S.  C,  August  10,  1892;  the  Local  Govern- 
ment Act,  1894,  56  &  57  Vict.  c.  73,  s.  70 ;  R.  S.  C.,  December  1894 ;  the 
London  Government  Act,  1899,  62  &  63  Vict.  c.  21,  s.  29.  The  Court 
will  not  hear  a  special  case  unless  there  is  some  rule  or  statutory  power 
to  state  it  {Bexley  Local  Board  v.  West  Kent  Sewerage  Board,  1882, 
9  Q.  B.  D.  518). 

[^Authorities. — The  Annual  Practice;  Notes  to  R.  S.  C,  1883  (Order  34); 
Chitty's  Archbold's  Practice,  13th  ed.,  1885,  pp.  1343-1346 ;  Daniell's 
Chancery  Practice,  7th  ed.,  1901,  ch.  xxxv. ;  Daniell's  Chancery  Forms, 
5th  ed.,  1901,  ch.  xxxvi. ;  Morgan's  Chancery  Acts  and  Oi'ders,  6th  ed., 
1885,  pp.  400-405;  Seton's  Judgments  and  Orders,  6th  ed.,  1901, 
ch.  xxi.] 

Special  Constables  are  peace  officers  appointed  on  emer- 
gency when  the  ordinary  forces  available  for  maintenance  of  public 
order  are  insufficient  to  preserve  the  public  peace  and  for  the  pro- 
tection of  persons  and  property.  The  appointment  is  now  for  the  most 
part  regulated  by  an  Act  of  1831  (1  &  2  Will.  iv.  c.  41).  Justices  in  such 
emergency  are  empowered  to  appoint  as  many  special  constables  as  they 
think  necessary.  Their  appointment  must  be  notified  to  the  Lord- 
Lieutenant  and  the  Home  Office  (1  &  2  Will.  iv.  c.  41,  s.  7).  The 
persons  appointed  must  be  "  sworn  in  "  and  must  make  a  declaration  of 
office  (31  &  32  Vict.  c.  72,  s.  12).  They  must  serve,  unless  exempt,  and 
even  if  exempt,  when  the  Secretary  of  State  so  orders  (1  &  2  Will.  iv. 
c.  41,  ss.  1,  2,  3,  8),  and  may  be  required  to  act  out  of  their  own  parish 
and  county  (1  &  2  Will.  iv.  c.  41,  s.  6;  5  &  6  Will.  iv.  c.  43).  Voters 
cannot  be  made  to  serve  during  a  parliamentary  election  (17  &  18  Vict, 
c.  102,  8.  8).  Provision  is  made  for  release  from  service  (1  &  2  Will.  iv. 
c.  41,  ss.  9,  10).  While  a  special  constable  is  in  office  he  has  all  the 
powers  of  a  common-law  constable  (1  &  2  Will.  iv.  c.  41,  ss.  5,  6 ;  R.  v. 
Porter,  1839,  9  Car.  &  P.  778),  and  in  London  of  a  metropolitan  police 
officer  (53  &  54  Vict.  c.  45,  s.  28).  Special  penalties  are  incurred  for 
assault  on  or  resistance  to  a  special  constable  (1  &  2  Will.  iv.  c.  41, 
s.  11).  The  expenses  of  special  constables  are  payable  out  of  the  county 
or  borough  police  rate  (s.  12),  subject  to  special  provisions  as  to  allow- 
ances for  arresting  felons  (41  Geo.  ill.  c.  78,  s.  1).  In  municipal  boroughs 
special  constables  may  be  appointed  under  sec.  196  of  the  Municipal 
Corporations  Act,  1882,  45  &  46  Vict.  c.  50,  by  two  or  more  justices 
having  jurisdiction  for  the  borough.  The  appointment  is  made  annually 
in  October.  They  must  not  be  appointed  unless  the  local  police  force  is 
insufficient,  and  do  not  act  without  being  required  to  do  so  by  warrant 
of  a  justice.  Under  particular  Acts  special  police  may  be  appointed  to 
watch  canal  and  other  works  during  construction  (1  &  2  Vict.  c.  80), 
harbours  (10  &  11  Vict.  c.  27,  ss.  79,  80),  and  salmon  and  fresh  water 
fishery  districts  (28  &  29  Vict.  c.  121,  s.  27). 

See  Constable  ;  Police,  Borough  ;  Police,  County. 

Special  Damage,  as  distinguished  from  General  Damage,  is 
such  loss  as  the  law  will  not  presume  to  be  the  consequence  of  the 
defendant's  act,  but  which  depends,  in   part   at  least,  on  the  special 

/ 


528 


SPECIAL  DEFENCE 


circumstances  of  the  case ;  it  must  therefore  be  always  explicitly  claimed 
on  the  pleadings,  and  at  the  trial  it  must  be  proved  by  evidence  both  that 
the  loss  was  incurred  and  that  it  was  the  direct  result  of  the  defendant's 
conduct.  General  Damage,  on  the  other  hand,  is  such  loss  as  the  law 
will  presume  to  be  the  natural  or  probable  consequence  of  the  defendant's 
act ;  it  arises  by  inference  of  law,  and  need  not  therefore  be  proved  by 
evidence,  and  may  be  averred  generally.     See  Damages,  Vol.  IV.  p.  326. 

Specia.1  Defence. — A  defence  that  must  be  specially  raised 
by  a  defendant  if  he  wishes  to  rely  upon  it  at  the  trial.  Such  defences 
include  fraud.  Statute  of  Limitations,  release,  payment,  performance, 
facts  showing  illegality  either  by  statute  or  common  law,  and  the  Statute 
of  Frauds,  which,  if  there  are  pleadings,  must  be  specially  pleaded  in  the 
defence  (R  S.  C,  Order  19,  r.  15).  It  was  at  one  time  considered  doubtful 
whether  the  Statute  of  Frauds  (or  sec.  4  of  the  Sale  of  Goods  Act,  1893) 
was  a  statutory  defence  within  County  Court  Eules,  rr.  10-20);  but  in 
Brutton  v.  Branson,  [1898]  2  Q.  B.  219,  it  was  held  that  it  was,  and  that, 
consequently,  notice  thereof  had  to  be  filed.  As  to  defence  of  Gaming 
Act,  see  Willis  v.  Lovick,  [1901]  2  K.  B.  195.  See  County  Courts  ; 
Pleading. 


Special  Finding".— See  Verdict. 
Special  Indorsement. 


TABLE  OF  CONTENTS. 


I.  General  Observations    . 
Origin 
Statutory  Provisions 

II.  Scope  of  the  Special  Indorse 
ment     .... 
General  Characteristics 

III.  Liquidated  Demand  . 
Generally 

Bill  of  Exchange,  Promis- 
sory Note,  Cheque 


IV. 


On  a  Bond  or  Contract 
under  Seal    .        .        .532 

Debt  under  Statute,  other 
than  a  Penalty      .        .     533 

On  a  Guaranty         .         .     533 

On  a  Trust     \         .         .533 

Recovery  of  Land  .  .  .  533 
General  Requirements  .  533 
Landlord  ....  533 
Tenant  .  .  .  .533 
Expiration  of  Term  .        .     533 


I.  General  Observations. 

Origin. — The  special  indorsement  was  created  by  sec.  25  of  the 
Common  Law  Procedure  Act,  1852,  15  &  16  Vict.  c.  76,  and  may  be 
regarded  as  the  first  step  towards  the  establishment  of  those  summary 
methods  of  procedure  which  culminated  in  1875  in  the  enactment  of 
Order  14.  The  special  indorsement  was  created  in  1852  solely  as  a 
basis  for  enabling  a  plaintiff  suing  for  a  debt  or  liquidated  demand  to 
sign  judgment  without  order  in  default  of  appearance.  But  it  has  since 
become  so  closely  bound  up  with  procedure  under  Order  14  that  it  will 
be  more  convenient  to  trace  the  gradual  developments  of  practice  which 
have  been  grafted  on  to  the  specially  indorsed  writ  in  dealing  with  the 
subject  of  Summary  Judgment  under  Order  14  {q.v.). 

Statutory  Provisions. — Order  3,  r.  6,  of  the  Eules  of  the  Supreme 
Court,  1883,  is  in  the  following  terms: — 

"  In  all  actions  where  the  plaintiff  seeks  only  to  recover  a  debt  or 
liquidated  demand  in  money  payable  by  the  defendant  with  or  withou  t 


SPECIAL  INDORSEMENT  529 

interest,  arising  (A)  upon  a  contract  express  or  implied  (as  for  instance 
on  a  bill  of  exchange,  promissory  note,  or  cheque,  or  other  simple  contract 
debt) ;  or  (B)  on  a  bond  or  contract  under  seal  for  payment  of  a  liquidated 
amount  of  money;  or  (C)  on  a  statute  where  the  sum  sought  to  be 
recovered  is  a  fixed  sum  of  money,  or  in  the  nature  of  a  debt  other  than 
a  penalty ;  or  (D)  on  a  guaranty,  whether  under  seal  or  not,  where  the 
claim  against  the  principal  is  in  respect  of  a  debt  or  liquidated  demand 
only ;  or  (E)  on  a  trust ;  or  (F)  in  actions  for  recovery  of  land,  with  or 
without  a  claim  for  rent  or  mesne  profits,  by  a  landlord  against  a  tenant 
whose  term  has  expired  or  been  duly  determined  by  notice  to  quit,  or 
has  become  liable  to  forfeiture  for  non-payment  of  rent,  or  against  persona 
claiming  under  such  tenant ;  the  writ  of  summons  may,  at  the  option  of 
the  plaintiff,  be  specially  indorsed  with  a  statement  of  his  claim,  or  of 
the  remedy  or  relief  to  which  he  claims  to  be  entitled.  Such  special 
indorsement  shall  be  to  the  effect  of  such  of  the  forms  in  Appendix  C, 
8.  4,  as  shall  be  applicable  to  the  case." 

This  rule  is  taken  from  sec.  25  of  the  Common  Law  Procedure  Act,. 
1852,  from  which,  however,  it  differs  in  several  important  particulars. 
The  original  contained  a  limitation  restricting  the  use  of  the  special 
indorsement  to  cases  in  which  the  defendant  was  resident  within  the 
jurisdiction.  It  was,  morever,  confined  strictly  to  a  claim  for  a  debt  or 
liquidated  demand  in  money,  and  did  not  therefore  apply  to  an  action 
for  recovery  of  land.  Nor  did  it  apply  to  money  due  on  a  trust,  the 
words  "  on  a  trust "  having  been  added  in  1875.  It  did  not  contain  the 
word  "  only,"  which  specifically  restricts  the  use  of  the  special  indorse- 
ment to  claims  within  the  above  rule  alone.  The  word  "  merely  "  was 
introduced  in  this  connection  in  1875,  and  this  word  was  replaced  by 
"  only  "  in  the  Rules  of  1883.  It  had  been  decided,  however,  in  Eodwaif 
V.  Lucas,  1855,  L.  R.  10  Ex.  667,  that  the  importation  of  an  un- 
liquidated claim  into  a  special  indorsement  under  the  section  was  not 
allowable.  The  addition  to  clause  (F)  applying  the  rule  to  forfeiture 
for  non-payment  of  rent  was  made  by  Rules  of  the  Supreme  Court, 
January  1902,  r.  1,  and  at  the  same  time  Rule  10  was  added  to  Order 
14,  providing  that  a  tenant  should  have  the  same  right  to  relief  from 
forfeiture  as  if  the  judgment  had  been  given  after  trial. 

II.  Scope  of  the  Special  Indorsement. 

General  Characteristics. — A  special  indorsement  is  for  all  practical 
purposes  the  statement  of  claim  in  the  action,  for  it  is  provided  by 
R.  S.  C,  Order  20,  r.  1  (a),  that  it  "  shall  be  deemed  to  be  the  statement 
of  claim."  A  specially  indorsed  writ,  therefore,  is  a  hybrid  document,, 
being  both  a  writ  of  summons  and  a  pleading,  and  this  twofold  char- 
acter of  the  process  has  given  rise  to  some  difficulty  in  consequence 
of  the  respective  provisions  regulating  the  service  of  writs  and  the 
delivery  and  amendment  of  pleadings,  which,  though  not  actually  con- 
flicting, are  certainly  contrariant.  A  writ  may  be  served  at  any  hour 
of  the  day  or  night  on  any  day  of  the  year  except  Sunday.  A  pleading 
cannot  be  delivered  during  the  Long  Vacation,  except  on  and  after  the 
1st  October  in  a  certain  class  of  cases  (Order  64,  rr.  4,  5) ;  and  if  it 
be  delivered  out  of  office  hours,  the  time  of  its  delivery  counts  from 
the  following  day  (Order  64,  r.  11).  So  it  might  be  contended  that 
a  specially  indorsed  writ  served  at  8  p.m.  would  count  as  served  on  that 
day,  though  the  statement  of  claim  indorsed  would  count  as  delivered 
vol.  xiil  34 

/ 


530  SPECIAL  INDORSEMENT 

on  the  following  day,  which  would,  of  course,  be  absurd.  The  result  of 
the  cases  settling  this  difficulty  may  be  broadly  stated  as  follows : — In 
all  questions  as  to  the  time  and  manner  of  service  the  rules  and  practice 
regulating  service  of  the  writ  are  to  prevail  and  apply  to  the  dual 
document  in  its  entirety.  Service  of  a  specially  indorsed  writ,  therefore, 
at  any  hour  of  the  vacation  or  term  time,  is  good  service  of  the  writ, 
and  good  delivery  of  the  statement  of  claim  indorsed  on  it  {Murray  v. 
Stephenson,  1887,  19  Q.  B.  D.  60 ;  Anlaby  v.  Prcetorius,  1888,  20  Q.  B.  D. 
764  C.  A.).  But  as  regards  amendment,  the  duality  of  the  specially 
indorsed  writ  is  preserved.  The  writ  portion  of  it  can  only  be  amended 
by  order,  but  the  statement  of  claim  indorsed  may  be  amended  without 
order  as  a  pleading  under  Order  28,  r.  2. 

The  statutory  forms  of  special  indorsement,  in  Appx.  C.  Part  IV.,  must 
be  followed  where  they  apply,  and  in  general  the  claim  must  give  the 
date  of  the  agreement,  instrument,  note,  or  bill  sued  on,  and  sufficient 
particulars  of  items,  dates,  and  parties  to  show  clearly  the  precise 
nature,  extent,  and  time  of  the  transaction  {Walker  v.  Hicks,  1877, 
3  Q.  B.  D.  8;  Aston  v.  Euncitz,  1879,  41  L.  T.  521;  Parpaite  Fr^res 
V.  Dickinson,  1878,  38  L.  T.  178). 

And  a  special  indorsement  must  in  all  cases  show  that  it  is  within 
the  rule.  Thus,  where  the  claim  is  under  subdivision  (F),  the  indorse- 
ment, in  order  to  be  special,  must  set  out  the  relationship  between  the 
plaintiff  and  defendant  required  by  the  rule  (see  IV.  infra). 

There  are  broadly  only  two  classes  of  claims  within  Order  3,  r.  6, 
viz.,  those  falling  within  the  definition  "  liquidated  demand,"  which  has 
many  important  subdivisions  (see  III.  infra),  and  those  in  which  a 
landlord  sues  a  tenant  for  recovery  of  possession  after  the  termination 
of  his  tenancy,  or  on  the  ground  of  forfeiture  for  non-payment  of 
rent  (see  IV.  infra). 

III.  Liquidated  Demand. 

Generally. — In  order  to  bring  a  money  claim  within  the  rule  it  must 
be  liquidated  in  its  nature  as  well  as  in  form.  Thus  a  claim,  which  is 
unliquidated  in  its  nature,  cannot  be  made  a  liquidated  claim  by  merely 
setting  it  out  in  the  form  of  an  account  for  a  stated  sum  of  money 
{Knight  v.  Ahbott,  1882,  10  Q.  B.  D.  11).  And  where  a  defendant 
agreed  to  purchase  the  plaintiffs  leasehold  interest  in  certain  premises 
for  a  stated  sum,  paying  part  of  the  money  as  deposit,  and  afterwards 
failed  to  complete,  it  was  held  that  a  claim  for  the  balance  was  not  a 
liquidated  demand  which  could  be  made  the  subject  of  a  special  indorse- 
ment, but  a  claim  for  damages  for  breach  of  contract  {Leader  v.  Tod- 
Heatly,  [1891]  W.  N.  38 ;  following  Laird  v.  Pirn,  1841,  7  Mee.  &  W. 
474).  A  sum  liable  to  fluctuation  by  reason  of  periodical  deductions, 
as  where  in  a  foreclosure  action  a  receiver  received  rents  with  liberty 
to  retain  the  interest,  cannot  be  sued  for  in  a  separate  action  against 
the  mortgagor  as  a  liquidated  demand  within  the  meaning  of  this  rule. 
The  proper  course  in  such  a  case  is  to  claim  payment  of  the  principal 
with  interest  down  to  the  date  of  the  certificate  in  the  foreclosure 
action,  and  not  to  bring  a  second  action  for  the  money  part  of  the  claim 
{Poulett  V.  Hill,  [1893]  1  Ch.  D.  277,  C.  A. ;  Williams  v.  Hunt,  [1905] 
1 K.  B.  512,  C.  A.).  On  the  other  hand,  a  claim  in  the  nature  of  damages 
may  be  brought  by  agreement  of  parties  within  the  meaning  of  the 
term  "  liquidated  demand,"  where  there  is  a  definite  contract  to  pay  a 


SPECIAL  INDORSEMENT  531 

stated  sum  on  breach  of  the  agreement  by  way  of  liquidated  damages 
(Lowe  V.  Peers,  1768,  4  Burr.  2225 ;  Gallsworthy  v.  Strutt,  1848,  1  Ex. 
Rep.  659) ;  but  damages  in  order  to  be  liquidated  so  that  a  writ  can  be 
specially  indorsed  for  their  recovery  must  be  claimed  as  a  sum  stated, 
or  at  a  specified  rate,  agreed  to  be  paid  in  a  certain  eventuality  which 
has  happened,  or  must  be  recoverable  under  a  statute  as  liquidated 
damages.  And  they  must  not  partake  of  the  nature  of  a  penalty. 
These  points  are  fully  discussed  under  Liquidated  Demand,  Vol.  VIII. 
p.  338. 

A  writ  may  be  specially  indorsed  with  a  claim  for  interest  where 
there  is  a  statutory  right  to  recover  interest  or  bank  charges  on  a 
bill  of  exchange  by  way  of  liquidated  damages,  and  the  ascertainment 
of  the  amount  is  merely  a  matter  of  calculation ;  or  where  there  is  a 
contract,  express  or  implied,  to  pay  interest  {Rodway  v.  Lucas,  1855, 
10  Ex.  Rep.  667;  Dando  v.  Boden,  [1893]  1  Q.B.  318;  Bloodv.Mobinson, 
1892,  36  Sol.  J.  203 ;  London  and  Universal  Bank  v.  Clancarty,  [1892] 
1  Q.  B.  689  ;  Laiorence  v.  Willcocks,  [1892]  1  Q.  B.  696).  But  even  if 
there  is  a  statutory  right  to  interest  it  only  extends  to  interest  at  the 
ordinary  rate;  and  if  claimed  at  an  exorbitant  rate,  it  immediately 
becomes  an  unliquidated  claim,  and  cannot  form  part  of  a  special 
indorsement  {Elliott  v.  Roberts,  1891,  36  Sol.  J.  92).  As  to  this  see 
more  fully  Interest  Recoverable  in  Actions,  Vol.  VII.  p.  319 ;  and 
Liquidated  Demand,  Vol.  VIII.  p.  338. 

Bill  of  Exchange,  Promissory  Note,  Cheque  {A). — All  attendant  items, 
such  as  interest  (at  ordinary  rate,  see  Generally,  supra),  expenses  of 
noting,  protest,  etc.,  coming  within  the  Bills  of  Exchange  Act,  1882, 
45  &  46  Vict.  c.  61,  may  be  included  in  a  special  indorsement.  The 
indorsement,  in  order  to  be  special,  must  aver  that  notice  of  dishonour 
has  been  given  where  such  notice  is  required  by  law,  or  if  such  notice 
has  been  waived,  the  indorsement  must  so  state.  Where  the  action 
is  against  the  maker  of  a  promissory  note,  or  the  a^xeptor  of  a  bill 
of  exchange,  notice  of  dishonour  is  not  necessary.  But  the  drawer 
and  each  indorser  of  a  bill  of  exchange  is  entitled  to  notice  of  dishonour 
(Bills  of  Exchange  Act,  1882,  s.  48 ;  see  Bills  of  Exchange,  VI.),  and 
the  special  indorsement  must  aver  that  it  was  duly  given.  The  same 
rule  applies  to  the  drawer  of  a  cheque  (iV%/iaM/ v.  Ch'osvenor  <&  Co.,  1892, 
67  L.  T.  350).  Notice  of  dishonour  cannot  be  imputed,  but  must  be 
duly  given  to  the  party  entitled  to  receive  it.  Where  a  man  acted  as 
secretary  of  two  companies  and  the  fact  of  dishonour  came  to  his 
knowledge  as  secretary  of  one  company,  but  not  the  one  entitled  to 
receive  the  notice,  and  no  other  notice  was  given,  it  was  held  that 
notice  of  dishonour  had  not  been  given  {In  re  Fenwick,  Stohart  cfe  Co., 
Ltd.,  [1902]  1  Ch.  507). 

Where  notice  of  dishonour  has  been  given,  but  no  averment  of  the 
fact  has  been  made  in  the  special  indorsement,  the  omission  may  be 
supplied  by  amendment  without  leave  under  Order  28,  r.  2  {Roberts 
V.  Plant,  [1895]  1  Q.  B.  597,  C.  A.). 

Other  Simple  Contract  Debt. — Besides  money  lent,  money  received 
by  defendant  to  the  use  of  the  plaintiff,  and  other  ordinary  trade  debts 
on  accounts  stated,  there  are  various  other  claims  falling  under  this 
head  which  may  be  made  the  subject  of  special  indorsement. 

A  debt  recoverable  under  a  final  judgment  of  the  High  Court  may 
be  made  the  subject  of  a  special  indorsement  (Hodsoll  v.  Baxter,  1858, 
^8  L.  J.  Q.  B.  61),  and  there  is  no  difference  between  an  English  and 

/ 


532  SPECIAL  INDORSEMENT 

a  foreign  judgment  in  this  respect  {Grant  v.  Easton,  1883,  13  Q.  B.  D. 
302).  But  the  judgment  sued  on  must  be  final  and  conclusive,  and 
therefore  it  was  held  that  a  "  remate  "  judgment  of  the  Spanish  Court 
was  not  within  the  above  ruling  (Nouvion  v.  Freeman  (In  re  HeTiderson), 
1889,  15  App.  Cas.  1).  And  it  must  be  properly  within  the  jurisdiction 
of  the  Court  which  gives  it.  Thus  a  judgment  by  default  in  New 
Zealand  against  defendants  domiciled  and  resident  in  England,  who 
had  not  submitted  to  the  jurisdiction,  was  held  to  be  one  which  could 
not  be  sued  on  in  this  country  {Turnbull  v.  Walker,  1892,  67  L.  T.  767). 
The  test  of  the  jurisdiction  of  the  foreign  Court  is  "  its  competence  to 
entertain  the  sort  of  case  it  did  deal  with,  and  its  competence  to  require 
the  defendant  to  appear  before  it"  {per  Lindley,  M.R.,  Peniberton  v. 
Hufjhes,  [1899]  1  Ch.,  at  p.  790 ;  Emanuel  v.  Symon,  [1907]  1  K.  B.  135). 
See  Liquidated  Demand,  Vol.  VIII.  p.  341. 

An  order  to  pay  a  sum  of  money  or  costs  may,  by  virtue  of  Order  42, 
r.  24,  be  made  the  subject  of  a  claim  by  special  indorsement  {Godfrey  v. 
George,  [1896]  1  Q.  B.  48),  and  this  applies  to  an  order  of  the  Probate 
Division  for  payment,  which  may  be  sued  upon  in  the  King's  Bench 
Division  by  specially  indorsed  writ  {Norton  v.  Gregory,  1895,  73  L.  T. 
10,  C.  A.).  Also  a  common  order  to  tax  after  the  amount  has  been 
ascertained  by  taxation  {In  re  Dehenham  and  Walker,  [1895]  2  Ch. 
430).  But  it  does  not  apply  to  a  County  Court  order  for  costs  {Furher 
V.  Taylor,  [1900]  2  Q.  B.  719,  C.  A.);  nor  to  a  claim  for  alimony 
pendente  lite  payable  under  an  order  of  the  Probate  Division  {Bailey  v. 
Bailey,  1884,  13  Q.  B.  D.  855,  C.  A.)  such  an  order  not  being  a  final 
and  conclusive  judgment  upon  which  an  action  to  enforce  it  may 
be  maintained  {Rolins  v.  Bohins,  [1907]  2  K.  B,  13).  A  garnishee 
order  which  cannot  be  executed  by  reason  of  the  garnishee  not 
possessing  property  within  the  jurisdiction  liable  to  execution,  may 
be  sued  upon  by  specially  indorsed  writ  {Fritchett  v.  English  and 
Colonial  Syndicate,  [1899]  2  Q.  B.  428,  C.  A.). 

An  action  cannot  be  brought  to  enforce  a  balance  order  made  in 
a  winding-up  under  the  Companies  Act,  1862,  25  &  26  Vict.  c.  89,  s.  101, 
or  102  {Chalk  v.  Tennent,  1887,  57  L.  T.  598);  but  where  the  calls  have 
been  made  before  the  winding-up,  a  debt  is  thereby  created,  and  after 
the  winding-up  has  commenced  an  action  by  specially  indorsed  writ 
is  maintainable  against  a  contributor  for  the  amount  of  his  call  as  an 
original  debt  {Westmoreland,  etc..  Slate  Co.  v.  Feilden,  [1891]  3  Ch.  15). 

On  a  Bond  or  Contract  under  Seal  {B). — The  bond  here  referred  to 
is  a  common-money  bond  under  4  &  5  Anne,  c.  16,  s.  12,  viz.,  "a  bond 
for  the  payment  of  a  sum  certain  at  a  day  certain  .  .  .  where  only  one 
breach  can  be  assigned,  and  the  penal  sum  is  not  for  the  performance 
of  several  covenants  "  (see  judgment  of  A.  L.  Smith,  J.,  in  Gerrard  v. 
Clowes,  [1892]  2  Q.  B.  D.  11),  and  cases  there  referred  to.  This  does 
not  mean  that  the  judgment  must  be  for  the  full  amount  claimed.  In 
the  last-named  case  the  bond  was  conditioned  for  payment  of  £500 
in  the  event  of  the  £250  not  being  received  by  the  obligee  by  a  certain 
date,  and  it  was  held  that  a  writ  could  be  specially  indorsed  for  the 
£500,  and  that  judgment  under  Order  14  could  be  given  for  £250. 
But  bonds  within  8  &  9  Will.  in.  c.  11,  s.  8,  involving  suggestion  of 
breaches  and  assessment  of  damages,  cannot  be  made  the  subject  of 
special  indorsement,  for  the  procedure  under  that  Act,  and  the  Civil 
Procedure  Act,  1833,  3  &  4  Will.  iv.  c.  42,  is  preserved  by  Order  13, 
r.  14.     Where,  therefore,  a  bond  is  conditioned  for  payment  of  the- 


SPECIAL  INDORSEMENT  533 

principal  sum  by  instalments,  or  is  not  for  the  payment  of  a  sum 
certain  at  a  day  certain,  but  the  penal  sum  is  for  the  performance  of 
several  covenants,  it  is  within  the  Statute  of  William,  and  not  within 
the  Statute  of  Anne,  and  cannot  be  made  the  subject  of  special  indorse- 
ment. Compare  the  judgments  in  Gerrard  v.  Clowes,  sup'a,  and  Tuther 
V.  Caralampi,  1888,  21  Q.  B.  D.  414. 

Debt  under  Statute  other  than  a  Penalty  (C). — (See  Damages,  V.). 
Where  the  sum  claimed  is  in  the  nature  of  liquidated  damages  and  not 
in  the  nature  of  a  penalty,  it  may  be  made  the  subject  of  a  special 
indorsement.  The  difiference  between  liquidated  damages  and  penalty 
is  that  where  the  agreement  does  not  provide  for  the  payment  of  a 
lump  sum  upon  the  non-performance  of  any  one  of  many  obligations 
differing  in  importance,  but  has  reference  to  a  single  obligation,  and  the 
sum  to  be  paid  bears  a  strict  proportion  to  the  extent  to  which  that 
obligation  is  left  unfulfilled,  that  is  liquidated  damages  and  not  penalty 
(per  Lord  Herschell,  L.C.,  Elphinstone  v.  Monkland  Iron,  etc.,  Co.,  1886, 
11  App.  Cas.  p.  345);  but  where  the  agreement  provides  for  the  pay- 
ment of  a  lump  sum  upon  the  non-performance  of  any  one  or  two 
(or  more)  obligations,  and  although  there  is  a  substantial  difference 
between  the  damages  which  would  arise  on  two  events,  the  same  sum 
is  made  payable  in  either  event,  that  is,  penalty  and  not  liquidated 
damages.  See  judgment  of  Lord  Esher,  M.R,  Wilson  v.  Love,  [1896] 
1  Q.  B.  p.  630  C.  A.    See  Liquidated  Demand,  Vol.  VIII.  p.  339. 

On  a  Guaranty  (D). — See  Guarantee. 

On  a  Trust  {E). — A  claim  for  a  trust  legacy  bequeathed  by  will, 
together  with  interest  at  4  per  cent,  from  the  date  of  the  death  of  the 
testator,  has  been  held  to  be  a  proper  subject  for  special  indorsement 
{Hamilton  v.  Brogdcn,  1890,  60  L.  J.  Ch.  88). 

IV.  Recovery  of  Land  {F). 

General  Beqtdrements. — The  claim  must  be  strictly  within  Clause  F. 
of  the  above  rule.  The  action  must  be  by  a  landlord  against  his  tenant 
or  some  person  claiming  under  such  tenant.  It  can  only  be  brought 
after  the  term  has  expired  or  been  duly  determined  by  notice  to  quit, 
or  has  become  liable  to  forfeiture  for  non-payment  of  rent.  It  may 
include  a  liquidated  claim  for  rent  due  and  an  unliquidated  claim  for 
mesne  profits  to  be  assessed.  And  the  indorsement  to  be  special  must 
properly  describe  the  property,  and  state  that  the  plaintiff  claims  as  land- 
lord against  a  tenant  whose  term  has  expired  or  been  duly  determined 
by  notice  to  quit,  or  has  become  liable  to  forfeiture  for  non-payment  of 
rent. 

Landlord. — The  very  words  of  the  rule  show  that  it  was  intended  to 
apply  only  to  a  simple  case  of  landlord  and  tenant.  "It  appears  to  me 
that  the  rule  applies  only  to  those  cases  where  the  plaintiff  has  himself 
demised  the  property,  and  has  been  party  to  the  lease  or  agreement 
under  which  it  has  been  held,  or  where  there  has  been  a  payment  of 
rent  by  the  defendant  to  the  plaintiff  in  the  action,  or  where  the 
defendant  is  otherwise  estopped  from  denying  the  plaintiffs  title  "  (per 
Lindley,  L.J.,  Casey  v.  Hellyer,  1886, 17  Q.  B.  D.  97).  In  that  case  there 
had  been  a  devolution  of  title,  and  it  was  held  that  Order  3,  r.  6, 
was  not  intended  to  apply  to  such  a  case.  Mere  payment  of  rent  by 
the  defendant  to  the  plaintiff,  however,  does  not  in  all  cases  create  an 
estoppel,  and  where  the  defendant  contended  that  he  had  paid  rent  to 

/ 


534  SPECIAL  JUEY 

the  plaintiff  as  agent  for  the  real  owner,  and  the  plaintiff  made  an 
attempt  to  prove  his  title  but  relied  on  the  alleged  estoppel,  the  defen- 
dant was  allowed  to  dispute  the  plaintiff's  title  {Jones  v.  Stone,  [1894] 
A.  C.  123).  See  Estoppel,  C.  Where  a  mortgage  deed  creates  the 
relationship  of  landlord  and  tenant,  and  an  action  is  brought  for 
recovery  of  land  by  the  mortgagee  against  the  mortgagor  in  posses- 
sion, the  writ  may  be  specially  indorsed  (Baulniz  v.  Lavington,  1884, 
13  Q.  B.  D.  347  ;  Hall  v.  Comfort,  1886,  18  Q.  B.  D.  11 ;  and  see  Kem^ 
V.  Lester,  [1896]  2  Q.  B.  162,  C.  A.,  infra). 

Tenant.  —  The  rule  expressly  extends  to  an  assignee  or  person 
claiming  under  the  tenant. 

Expiration  of  Term. — The  tenancy  must  have  been  properly  deter- 
mined either  by  effluxion  of  time  or  notice  to  quit.  But  if  it  is  a 
tenancy  at  will,  the  issue  of  the  writ  for  possession  is  sufficient 
determination  of  the  tenancy  without  notice  to  quit  {Jerred  v.  Edwards, 
1891,  92  L.  T.  J.  8;  and  see  Dauhuz  v.  Lavington  and  Hall  v.  Comfort, 
swpra).  And  where  the  mortgage  deed  created  a  tenancy  from  year  to 
year,  and  gave  the  landlord  liberty  to  enter  and  take  possession  at  any 
time  without  giving  any  notice,  it  was  held  that  the  case  was  within 
Order  3,  r.  6  {Kemp  v.  Lester,  [1896]  2  Q.  B.  162,  C.  A.). 

The  words  of  the  rule  are  similar  to  those  of  sec.  1  of  1  Geo.  iv.  c.  87, 
and  of  sec.  213  of  the  Common  Law  Procedure  Act,  1852,  15  &  16  Vict. 
c.  76 ;  and  the  decisions  on  those  provisions  are  to  the  effect  that  they 
did  not  apply  to  the  case  of  determination  of  a  tenancy  by  forfeiture 
{Arden  v.  Boyce,  [1894]  1  Q.  B.  796,  C.  A.).  These  decisions,  however, 
no  longer  apply  since  the  addition  to  Order  3,  r.  6  (E),  of  the  words 
"  or  has  become  liable  to  forfeiture  for  non-payment  of  rent." 

Special  Jury.— See  Jury. 

Special  Licence. — See  Licence,  Marriage;  Solemnisation 
OF  Marriage. 

Specially  Indorsed  Writ.— See  Special  Indorsement. 

Special  Occupancy. — See  Life,  Estates  for. 

Special  Paper. — A  list  kept  in  the  King's  Bench  Division,  in 
which  are  entered  special  cases  and  actions  which  have  been  set  down 
for  argument  on  points  of  law. 

Special  Pleaders. — Special  pleaders  are  legal  practitioners 
who  specially  devote  their  attention  to  the  drawing  of  common-law 
pleadings.  The  term  "special  pleader,"  though  applicable  to  any 
member  of  the  bar  who  practises  as  a  pleader,  is  generally  used  to 
describe  a  certain  class  of  lawyers  who  are  students  of  one  of  the  Inns 
of  Court,  and  are  entitled  to  practise  as  counsel  under  the  bar  by  virtue 
of  stamped  certificates  issued  to  them  by  the  Commissioners  of  Inland 
Eevenue. 

The  certificated  special  pleaders  confine  themselves  to  what  is  known 
as  chamber  practice,  namely,  drawing  pleadings  in  civil  proceedings, 
advising  in  cases,  attending  summonses  in  judge's  chambers,  and  teach- 
ing pupils.  Not  having  been  called  to  the  bar,  they  have  no  right  of 
audience  in  Court ;  but  they  can  conduct  cases  referred  to  arbitration, 
and  otherwise  act  as  counsel. 


SPECIAL  SESSIONS  535 

Formerly,  when  pleading  was  an  act  of  a  more  technical  though 
more  exact  character  than  it  is  at  the  present  time,  the  number  of 
persons  practising  as  certificated  special  pleaders  was  considerable. 
Many  lawyers  who  afterwards  obtained  distinction  either  as  judges  or 
counsel  had  qualified  themselves  for  the  practice  of  their  profession  in 
the  Courts  by  some  years  of  preliminary  work  as  certificated  special 
pleaders,  and  certain  writers  of  legal  works  of  the  greatest  authority 
remained  to  the  end  of  their  lives  as  special  pleaders  under  the  bar. 
After  the  passing  of  the  Common  Law  Procedure  Act,  1852,  the  number 
of  certificated  special  pleaders  gradually  diminished,  and  now  this  class 
of  pleader  is  extinct. 

A  person  who  has  practised  for  five  years  as  a  special  pleader,  or  as 
a  special  pleader  and  barrister,  is  eligible  for  the  post  of  a  Master  of 
the  Supreme  Court  (Judicature  (Officers)  Act,  1879,  42  &  43  Vict.  c.  78, 
8. 10);  and  before  the  passing  of  the  present  County  Courts  Act,  1888, 
a  person  who  had  practised  as  a  barrister  and  special  pleader  for  seven 
years  was  eligible  for  the  appointment  of  a  County  Court  judge  (see 
9  &  10  Vict.  c.  95,  8.  16). 

By  the  Consolidated  Kegulations  of  the  several  Societies  of  Lincoln's 
Inn,  the  Middle  Temple,  the  Inner  Temple,  and  Gray's  Inn,  no  student 
of  an  Inn  of  Court  is  allowed  to  take  out  a  certificate  to  practise  as 
a  special  pleader  under  the  bar  without  the  special  permission  of  the 
Masters  of  the  Bench  of  the  Inn  of  Court  of  which  he  is  a  student ; 
and  no  such  permission  is  to  be  granted  unless  such  student  has  fulfilled 
the  requirements  necessary  to  qualify  him  for  being  called  to  the  bar, 
and  then  it  can  be  granted  for  one  year  only,  but  may  be  renewed 
annually. 

By  the  Stamp  Act,  1891,  a  person  desiring  to  practise  as  a  special 
pleader  must  take  out  a  certificate  in  every  year  before  he  does  any  act 
in  that  capacity  (54  &  55  Vict.  c.  39,  s.  47).  See  Schedule,  s.v.  Certificate, 
as  to  sum  payable. 

Special  pleaders,  if  actually  practising  as  such,  are  exempt  from  being 
returned  to  serve,  and  from  serving,  upon  any  juries  or  inquests  (33  &  34 
Vict.  c.  77,  8.  9). 

Specia.1  Referee — A  referee  specially  appointed  to  deal  with 
a  particular  matter.  The  Court  has  power  under  sec.  14  of  the  Arbitra- 
tion Act,  1889,  to  order  a  cause,  or  matter,  or  any  issue  or  question  of 
fact  arising  therein  which  cannot  conveniently  be  tried  in  the  ordinary 
way,  to  be  tried  before  a  special  referee  or  arbitrator  agreed  on  by  the 
parties,  or  before  an  official  referee  or  officer  of  the  Court.  Before  a 
matter  can  be  so  referred  to  a  special  referee,  all  parties  must  consent. 
See  Arbitration;  Eeference  of  Action  by  Order. 

Specia.1  Sessions. — A  special  session  is  a  meeting  of  justices 
out  of  session  called  for  a  special  purpose  under  the  provisions  of  a 
particular  statute,  and  of  which  notice,  unless  dispensed  with  by  statute, 
must  be  given  to  the  justices  acting  for  the  limits  for  which  such  special 
session  is  held.  The  following  are  the  chief  purposes  for  which  a  special 
session  may  be  held : — 

Alehoitses,  etc.,  Licences. — The  general  annual  licensing  meeting  of 
justices  held  under  the  Alehouse  Act,  1828,  and  amending  Acts,  is  a 
"  special  session  of  the  justices  of  the  peace  "  (9  Geo.  iv.  c.  61).  The 
sessions  are  holden  in  every  licensing  district  within  the  first  fourteen 


/ 


536  SPECIAL  SESSIONS 

days  of  February  in  each  year.  There  is  some  doubt  as  to  whether  the 
licensing  meeting  for  the  City  of  London  should  not  still  be  held  in 
March  (see  Williamson's  Law  of  Licensing,  1905  ed.,  p.  6?i.).  Billiard 
licences  are  granted  at  these  sessions  (8  &  9  Vict.  c.  109,  s.  10). 

Transfer  Sessions. — See  Licensing,  Vol.  VIII.,  at  p.  200.  As  to  the 
power  of  justices  at  special  or  transfer  sessions,  the  general  rule  is  that 
justices  have  the  same  discretion,  but  not  more,  as  to  the  grant  of  trans- 
fers from  one  person  to  another,  as  they  have  as  to  new  and  renewal 
licences  (cp.  Lord  Coleridge,  C.J.,  in  Boodle  v.  Birmingham  JJ.,  1881,  45 
J.  P.  636 ;  Charles,  J.,  in  Traynm-  v.  Jones,  [1894]  1  Q.  B.  86).  Kecent 
legislation  gives  the  justices  absolute  discretion  to  refuse  the  transfer  of 
an  q/ licence  or  of  a  new  (w  licence  granted  since  1904  other  than  a 
leased  licence  during  the  continuance  of  the  term  (Paterson's  Licensing 
Acts,  1907  ed.,  pp.  33,  189).  Transfers  of  billiard  licences  may  be 
granted  at  these  sessions  (8  &  9  Vict.  c.  109,  s.  10;  Licensing  Act, 
1872,  8.  75). 

Parish  Constables. — See  Constable,  Vol.  III.,  at  p.  484. 

Special  Constables. — See  Special  Constables. 

Jury  List. — See  Jury,  Vol.  VII.,  at  p.  579. 

Lnnacy. — See  Asylums,  Vol.  I.,  at  p.  599. 

Highways. — By  sec.  45  of  the  Highway  Act,  1835,  justices  are  re- 
quired to  hold  not  less  than  eight  nor  more  than  twelve  special  sessions 
in  every  year  for  highway  purposes,  the  days  of  the  holding  thereof 
to  be  appointed  at  a  special  sessions  to  be  held  within  fourteen  days 
after  the  25th  of  March  in  every  year ;  and  it  is  provided  that  it  shall 
not  be  necessary  to  cause  any  notice  to  be  given  or  sent  to  any  justice 
acting  and  residing  within  such  limits  of  the  day  or  time  of  the  holding 
thereof.  This  provision  in  the  Act  of  1835  is  now  of  less  importance, 
as  it  is  enacted  by  sec.  46  of  the  Highway  Act,  1864,  that  "  the  justices 
assembled  in  petty  sessions  at  their  usual  place  of  meeting  may  exercise 
any  jurisdiction  which  they  are  authorised,  under  the  Highway  Acts  or 
any  of  them,  to  exercise  in  special  sessions." 

Overseers. — See  Ovekseeks,  Vol.  X.,  at  p.  224. 

Poor-Rate  Appeals. — See  Eating. 

Music  and  Dancing  Licences. — See  Public  Dancing-House  ;  Public 
Entertainment. 

Contribution  Orders.  —  Where  overseers  are  in  arrear  with  their 
contribution  to  the  guardians,  they  may  be  summoned  to  show  cause, 
at  a  special  session  of  the  justices  to  be  held  for  the  purpose,  why  such 
contribution  has  not  been  paid  (2  &  3  Vict.  c.  84,  s.  1). 

As  to  convening  a  special  session,  sec.  7  of  7  &  8  Vict.  c.  33,  provides 
that  "  in  all  cases  in  which  special  sessions  are  required  to  be  holden 
for  any  division  of  any  county  or  place,  if  notice  of  the  intended  holding 
of  such  special  sessions  be  signed  by  any  one  justice  of  the  peace  usually 
acting  within  such  division,  and  if  a  copy  of  such  notice  be  sent  by  post 
a  reasonable  time  before  the  day  on  which  such  sessions  are  to  be 
holden,  addressed  to  each  justice  of  the  peace  resident  and  usually 
acting  within  such  division  at  his  residence  in  such  division,  such  notice 
shall  be  deemed  to  have  been  duly  given  to  or  served  on  each  such 
justice  of  the  peace,  any  law  or  custom  to  the  contrary  notwithstand- 
ing" (see  B.  V.  Worcestershire  JJ.,  1818,  2  Barn.  &  Aid.  228).  In  all 
cases,  however,  where  the  method  of  convening  any  special  sessions 
is  expressly  provided  by  statute,  as,  for  example,  a  transfer  sessions 
under  sec.  5  of  the  Alehouse  Act,  1828,  that  method  must  be  pursued. 


SPECIFICATION,  ACQUISITION  OF  PROPERTY  BY    537 

There  is  no  statutory  power  to  adjourn  a  special  session,  unless  in 
cases  where  the  Summary  Jurisdiction  Act,  1848,  s.  1,  applies;  but 
where  the  justices  have  entered  upon  a  matter  in  special  sessions,  they 
may  adjourn  the  hearing  or  determination  of  such  matter. 

Special  Tail. — See  Estates  of  Inheritance. 

Specialty. — A  contract  under  seal,  as  distinguished  from  a 
simple  contract.     See  Contract;  Deed. 

Specialty  Debts. — Debts  secured  by  special  contract  con- 
tained in  a  deed.  Formerly  debts  by  specialty,  in  which  the  heir  of  the 
debtor  was  bound,  took  priority  over  those  in  which  the  heir  was  not 
bound,  if  on  the  death  of  the  debtor  recourse  to  his  real  estate  was 
necessary  for  payment,  unless  indeed  the  debtor  by  his  will  had  charged 
his  realty  with  payment  of  his  debts,  in  which  case  specialty  debts  of 
both  classes  and  simple  contract  debts  all  stood  on  an  equal  footing. 
In  the  absence  of  such  a  charge  both  classes  of  specialty  debts  took 
precedence  of  simple  contract  debts  till  the  law  was  altered  by  Hinde 
Palmer's  Act  (32  &  33  Vict.  c.  46)  {q.v.).  See,  too,  Bankruptcy; 
Limitation. 

Special  Verdict.— See  Verdict. 

Specification,  Acquisition  of  Property  by.— 

According  to  the  principles  of  tlie  Roman  law,  property  was  acquired  by 
specijicatio  when  a  new  and  distinct  article  {nova  species)  was  manufac- 
tured by  one  man  out  of  materials  belonging  to  another.  It  was  one 
instance  of  Accession  of  Property  {q.v.),  and  akin  to  Commixture  and 
Confusion  {q.v.),  in  which  cases,  however,  the  materials  mixed  were 
only  partially  the  manufacturer's. 

In  English  law  similar  principles  are  recognised.  Thus  if  one  man 
innocently,  under  the  bond-Jide  idea  that  he  had  a  title  to  use  another's 
property  in  a  particular  way,  so  makes  use  of  it  and  destroys  its  previous 
form,  the  remedy  will  be  an  action  for  the  value  of  the  property  destroyed. 
If  a  person,  under  the  belief  that  an  estate  is  his,  has  made  payments 
for  which  another  would  be  liable,  e.g.  ground  rent,  or  rates  and  taxes, 
he  can  have  them  taken  into  account  in  reduction  of  damages,  or  recover 
the  amount  in  an  action  for  money  had  and  received  (Mayne  on  Damages, 
7th  ed.,  476 ;  Barber  v.  Brown,  1856,  26  L.  J.  C.  P.  p.  49).  American  cases 
go  further  and  allow  the  value  of  permanent  improvements  in  mitigation 
of  damages  (Mayne,  I.e.).  The  law  in  these  cases,  in  fact,  implies  a  contract. 
But  English  law  will  not  imply  a  contract  unless  the  expense  was  incurred 
to  the  knowledge  of  the  owner  of  the  property  in  the  expectation  of 
being  repaid.  See  per  Bowen,  L.J.,  in  Falcke  v.  Scottish  Insurance  Co., 
1886,  34  Ch.  D.  248  et  seq.,  where  he  notes  that  salvage,  general  aver- 
age, and  contribution  are  exceptions  to  the  rule  that  work  done  or 
money  expended  by  one  man  to  preserve  or  benefit  the  property  of 
another  do  not  create  an  obligation  to  repay  the  expenditure.  (See 
Indemnity;  Negotiorum  Gestio;  and  Quasi  Contracts.)  In  some 
cases  there  is  a  presumption  of  a  licence  or  dispensation  to  use  the 
articles  converted,  which  only  becomes  a  grant  when  their  value  has 
been  paid  (see  Baker  v.  Gray,  1856, 17  C.  B.  462).  As  was  once  remarked, 
if  cloth  is  supplied  to  a  tailor  he  has  no  right  to  charge  for  it,  but  the 

/ 


538      SPECIFICATION  IN  BUILDING,  ETC.,  CONTEACTS 

value  of  the  materials  supplied  can  be  deducted  in  estimating  what  he  is 
to  receive  {Newton  v.  Forster,  1844,  12  Mee.  &  W.  772).  Once  a  grant, 
however,  can  be  made  out,  it  will  be  irrevocable  ( Wood  v.  Leadbitter, 
1845,  13  Mee.  &  W.  838 ;  67  E.  E.  830).  Again,  if  a  man  uses  another's 
property,  but  in  such  a  way  that  its  physical  nature  does  not  undergo 
any  material  change,  the  real  owner  can  reclaim  the  identical  articles 
{Tripp  V.  Armitage,  1839,  4  Mee.  &  W.  687 ;  51  E.  E.  762).  But  in  the 
case  of  such  things  as  building  materials  specifically  appropriated  and 
fixed,  only  their  value  will  be  recoverable  {Baker  v.  Gray,  supra).  In 
general,  where  there  is  an  implied  licence  to  use  the  articles,  actual 
fixation  will  nor  be  required  (Banbury  and  Cheltenham  Rly.  Co.  v. 
Baniel,  1884,  54  L.  J.  Ch.  265 ;  Woods  v.  Russell,  1822,  5  Barn.  &  Aid. 
942 ;  24  E.  E.  621),  but  where  the  question  arises  in  bankruptcy  the 
strict  rule  will  prevail  {Ex  parte  Barter,  1884,  L.  E.  26  Ch.  D.  510";  Ex 
parte  Jay  ;  In  re  Harrison,  1879, 14  Ch.  D.  19  ;  Li  re  Winter  ;  Ex  parte 
Bolland,  1878,  8  Ch.  D.  225.  And  see  Anglo-Egyptian  Navigation  Co. 
V.  Bennie,  1875,  L.  E.  10  C.  P.  271). 

Specification    in    Building  and    Engineering 

Contracts. — As  regards  building  contracts,  the  specification  has 
been  reduced  by  the  practice  of  architects  more  or  less  into  a  common 
form,  though  the  work  to  be  done  and  the  materials  to  be  used  in  each 
building  are  different. 

The  descriptions  of  work  and  materials  are  divided  up  under  the 
various  trades,  and  the  trades  follow  the  order  in  which  the  different 
tradesmen  would  under  usual  circumstances  be  required  to  perform 
work  upon  the  buildings. 

Thus  the  trades  and  their  order  are  usually  as  follows : — 

Excavator  (and  road  maker) ;  bricklayer  or  waller  (including  drain- 
age) ;  pavior ;  mason ;  carpenter ;  joiner ;  slater ;  plumber  (including 
hot- water  engineer) ;  plasterer ;  smith  and  bellhanger ;  gas  fitter  or 
electric  lighting;  glazier;  painter  and  paperhanger. 

In  addition  to  the  foregoing,  there  are  often  many  other  special 
trades  described,  and  if  they  are  not  described,  then  specific  sums  are 
required  to  be  included  by  the  builder  in  his  tender  to  pay  for  the  work 
to  be  done  by  these  special  tradesmen. 

These  special  tradesmen  are  increasing  year  by  year,  particularly 
in  large  cities,  where  all  skilled  labour  is  being  subdivided  to  meet 
the  wants  of  the  public  for  specially  skilled  work.  The  difficulties  of 
building  owners  and  architects  are  therefore  increased,  because  while 
wishing  to  employ  special  men  to  do  particular  work  and  to  control 
them,  they  want  to  relieve  themselves  from  the  responsibility  of  the 
interference,  which  these  workmen  create,  in  execution  of  the  work 
which  the  contractor  has  agreed  to  perform. 

It  would  be  impossible  to  enumerate  all  the  details  of  a  specification, 
but  each  description  of  work  to  be  done  by  a  contractor,  whether  of  build- 
ing or  engineering,  must  comprise  two  essentials:  one,  that  the  con- 
tractor must  supply  the  materials ;  and  the  other,  that  he  must  do  the 
work — everything  divides  itself  into  work  and  labour.  Thus  the  words, 
so  commonly  used,  occur :  "  provide  and  set "  or  "  provide  and  fix." 
Further,  it  is  essential  that  the  specification  and  drawings  should 
together  form  a  complete  description  or  demonstration  in  themselves  of 
how  the  work  is  to  be  done,  when  it  has  to  be  done,  and  of  what 
materials.     Much  work,  however,  though  described  in  the  specification 


SPECIFIC  PEEFOEMANCE  539 

or  shown  on  the  drawings  cannot  be  sufficiently  so  described  or  shown, 
and  in  such  cases  the  work  is  required  to  be  done  according  to  details 
to  be  supplied  by  the  architect  or  to  his  approval.  This  makes  a  per- 
fectly complete  description  for  a  contract  between  builder  and  building 
owner ;  the  only  person  who  can  object  is  the  builder,  who  binds  him- 
self to  do  something  which  a  third  person  tells  him. 

In  all  building  and  engineering  contracts,  however,  where  work  has 
to  be  done  to  the  approval  of  a  skilled  person,  such  as  an  architect, 
surveyor,  or  engineer,  the  builder,  unless  he  knows  the  requirements 
of  the  third  person,  must  be  contracting  in  the  dark. 

In  such  cases,  if  the  decision  of  the  architect  or  engineer  is  final,  the 
description  of  materials  as  "  best "  or  of  a  particular  make,  and  so  on, 
must  be  surplusage,  because  whatever  the  architect  or  engineer  says  is 
final  and  cannot  be  disputed.  He  is  the  standard  of  excellence  of  kind 
and  quality  of  work. 

Descriptions  of  work  and  materials,  however,  are  important  where 
work  is  to  be  done  to  the  approval  of  the  building  owner,  because  he 
must  be  reasonable,  and  it  would  not  be  wise  to  omit  descriptions  even 
where  an  architect's  decision  is  final,  because  the  architect  might  die 
or  his  decision  might  be  upset  if  he  did  not  act  honestly,  and  then  there 
would  be  nothing  by  which  the  kind  of  work  in  the  contract  could  be 
ascertained,  and  a  judge  or  an  arbitrator  would  then  have  to  settle  what 
work  and  materials  would  be  usual  in  order  to  construct  the  building  in 
question.  An  architect  has  no  authority  to  sanction  the  use  of  other 
materials  in  place  of  those  agreed  on  by  owner  and  contractor  {Sted  v. 
Youmj,  1907,  S.  C.  360,  Ct.  of  Sess.). 

In  contracts  with  public  authorities,  sec.  174  of  the  Public  Health 
Act,  1875,  must  be  complied  with.  The  section  provides  (1)  that  every 
contract  made  by  an  urban  authority  whereof  the  value  or  amount 
exceeds  fifty  pounds  shall  be  in  writing  and  sealed  with  the  common 
seal  of  the  authority ;  and  (2)  that  every  such  contract  shall  specify  the 
work,  materials,  matters,  and  things  to  be  furnished,  had,  or  done,  the 
price  to  be  paid,  and  the  time  or  times  within  which  the  contract  is  to 
be  performed,  and  shall  specify  the  pecuniary  penalty  to  be  paid  in  case 
the  terms  of  the  contract  are  not  duly  performed. 

The  question  of  the  absolute  necessity  of  inserting  a  penalty  clause 
in  the  contracts  of  local  authorities  has  recently  been  the  subject  of 
judicial  examination  in  the  case  of  Soothill  Upper  U.  D.  C.  v.  Wakefield 
B.  D.  C,  [1905]  1  Ch.  53  ;  2  Ch.  516,  in  which  the  Court  of  Appeal  was 
not  unanimous.  The  cases  of  Young  v.  Mayor  of  Leamington,  1883, 
8  App.  Cas.  517,  and  British  Insulated  Wire  Co.  v.  Prescot  U.  D.  C,  [1895] 
2  Q.  B.  463,  should  also  be  examined.  See  also  Builder  and  Building 
Contracts. 

Specif fcation  of  Inventions.— See  Patents. 
Specific  Performance. 

TABLE  OF  CONTENTS. 


What  Specific  Peeformakoe  is  .  540 
Origin    and    Development    of  the 

Jurisdiction  ....  540 
Extent  and  Limits  of  the  Joris- 

diction 543 


Contracts  relating  to  Land.    .  546 

The  Statdte  of  Fradds    .    .  546 

Exceptions  from  the  Statute    .  551 
Contracts  relating  to  Personal 

Property  or  Acts   .    .    .  554 


540 


SPECIFIC  PERFORMANCE 


Compensation  . 

.     558 

Damages . 

.     561 

Injunction 

.     564 

The  Action    . 

.     566 

Tribunal     . 

.     566 

Parties 

.     566 

Pleading— Transfer— iVe  ^xea<  ,  569 

Grounds  of  Defence    .         .  ,  570 

Evidence — Parol  Variation  .  579 

Judgment— Costs        .        .  .  581 

Deposit 582 

Interest  and  Rents      .        .  .  582 

Proceedings  after  Judgment  .  583 


What  Specific  Performance  is. 

A  contract  is  specifically  performed  when  each  of  the  parties  to  it 
does  the  very  thing  or  things  which  he  contracted  to  do,  and  when, 
accordingly,  each  party  gets  in.  specie  what  he  by  the  contract  bargained 
for. 

This  is  presumably  the  object,  and  should  be  the  consequence  and 
result,  of  every  lawful  contract;  and  one  would  therefore  naturally 
expect  to  find  the  enforcement  of  specific  performance  occupying,  in 
a  civilised  system  of  jurisprudence,  the  place  of  the  normal  legal  remedy 
for  breach  of  contract.  And  indeed,  in  Scotland,  the  breach  of  a  contract 
for  the  sale  of  a  specific  object,  such  as  a  particular  piece  of  land,  gives 
to  the  party  aggrieved  the  legal  right  to  sue  for  specific  performance, 
or,  as  it  is  there  termed,  implement,  and  he  cannot  be  compelled  to  resort 
to  the  alternative  of  an  action  for  damages,  unless  implement  is  impossible. 
In  other  words,  specific  performance  is  part  of  the  ordinary  jurisdiction 
of  the  Scottish  Courts  {Steivart  v.  Kennedy,  1890, 15  App.  Cas,,  at  pp.  102, 
105).  In  German  Courts  also  (see  the  German  Code  of  Civil  Procedure), 
and  in  Courts  which  administer  Roman-Dutch  law  (see  Van  Leeuwen's 
Commentaries,  translated  by  Kotz^  vol.  ii.  pp.  27,  118,  141,  and  410), 
the  specific  performance  of  contracts  is  extensively  enforced :  but  how 
far  that  remedy  can  be  obtained  in  France  appear^  to  be  a  disputable 
question  (see  8  Law  Quarterly  Review,  252, 17  ih.  372 ;  Fry,  4th  ed.,  p.  680). 
In  the  Channel  Islands  there  is  no  Court  which  can  decree  specific 
performance  of  a  private  contract  {Godfrayy.  Constahles  of  the  Isle  ofSark, 
[1902]  A.  C,  at  p.  540) ;  and,  as  will  presently  be  seen,  in  England  it 
is  by  no  means  every  class  of  contract  that  is  specifically  enforceable. 


Origin  and  Development  of  the  Jurisdiction. 

According  to  the  common  law  of  England,  which  in  this  respect 
resembled  the  Roman  law,  the  only  legal  right  arising,  upon  the  non- 
performance of  a  contract,  in  favour  of  the  party  injured  by  the  breach, 
was  a  claim  for  damages,  a  form  of  remedy  obviously  inadequate,  in  many 
cases,  for  the  purposes  of  justice.  It  is  unconscionable  that  a  person 
who  has  entered  into  a  binding  contract,  which  he  on  his  part  is  perfectly 
able  to  perform,  should  be  allowed,  as  the  common  law  in  effect  allowed 
him,  the  right  of  electing  between  performance  of  his  part  of  the  con- 
tract, and  payment  of  damages  for  not  performing  it.  And  so  it  is  not 
surprising  to  find  that,  when  a  Court  of  Conscience  (as  the  Chancellor's 
Court  is  called  in  an  early  case  [Case  123  in  the  Selden  Society's  Select 
Cases  in  Chancery'])  became  established  in  this  country,  and  successive 
Chancellors  presiding  over  that  Court  developed  and  enforced  the  prin- 
ciples of  equity,  one  of  the  matters  in  respect  of  which  they  assumed 
and  exercised  jurisdiction  was  to  decree  the  specific  performance  of 
contracts.  It  may  be  (see  Fry,  4th  ed.,  chap,  i.)  that  ecclesiastical 
Chancellors  borrowed  the  idea  from  the  ecclesiastical  Courts  Christian, 


SPECIFIC  PERFOEMANCE  541 

which  seem  to  have  claimed  a  jurisdiction  to  enforce  the  specific  per- 
formance of  contracts  in  cases  where  a  breach  of  plighted  faith  {Jidei 
Icesio)  had  occurred.  Whether  that  was  so  or  not,  it  is  tolerably  clear  that 
the  defect  in  the  English  juridical  system  which  the  Chancellor's  Court 
sought  to  cure  by  decreeing  specific  performance  lay  in  the  rigidity  and 
inadequacy  of  the  common-law  remedy  for  breach  of  contract.  "  Un- 
questionably," said  Lord  Eedesdale  in  Harnett  v.  Yielding,  1805,  2  Sch. 
&  Lef.,  at  p.  553 ;  9  R.  R.,  at  p.  100,  "  the  original  foundation  of  these 
decrees  was  simply  this,  that  damages  at  law  would  not  give  the  party 
the  compensation  to  which  he  was  entitled ;  that  is,  would  not  put  him 
in  a  situation  as  beneficial  to  him  as  if  the  agreement  were  specifically 
performed."  Again,  Lord  Erskine,  in  Alley  v.  Beschamps,  1806,  13  Ves. 
Jun.,  at  p.  227 ;  33  E.  R.  278,  said  :  "  This  Court  (of  Chancery)  assumed 
the  jurisdiction  upon  this  simple  principle,  that  the  party  had  a  legal 
right  to  the  performance  of  the  contract ;  to  which  right  the  Courts  of 
law,  whose  jurisdiction  did  not  extend  beyond  damages,  had  not  the 
means  of  giving  effect ; "  adding,  "  even  that  was  considered  by  the 
Courts  of  law  to  be  a  great  usurpation."  And  in  a  modern  case  {Hexter 
V.  Pearce,  [1900]  1  Ch.,  at  p.  346)  a  similar  view  was  expressed  by 
Farwell,  J.,  who  said  :  "  To  my  mind  the  whole  doctrine  of  specific  per-j. 
formance  rests  on  the  ground  that  a  man  is  entitled  in  equity  to  havel 
in  specie  the  specific  article  for  which  he  has  contracted,  and  is  not  bound] 
to  take  damages  instead.  The  right  to  sue  on  a  contract  is  the  same  ip|| 
law  and  in  equity,  but  the  remedies  differ." 

It  is,  indeed,  the  fact  that,  as  Lord  Erskine's  words  just  quoted 
indicate,  the  Chancery  jurisdiction  in  specific  performance  was  regarded 
with  no  little  jealousy  by  the  common  law  Courts,  and  their  resistance 
to  it  was  long  continued.  The  jurisdiction  can  be  traced  back  as  far  as 
to  the  reign  of  Richard  ii.  (see  the  Selden  Society  s  Select  Cases  in  Chancery, 
p.  XXXV.) ;  and  yet,  so  long  after  that  time  as  the  fourteenth  year  of 
James  I.,  the  Judges  of  the  Court  of  King's  Bench  stopped,  by  prohibition, 
what  seems  to  have  been  a  suit  in  the  Marches  Court  of  Wales  to  enforce 
specific  performance  of  a  covenant  to  grant  a  lease,  expressing  their 
opinion  that  undoubtedly  a  Court  of  equity  ought  not  to  give  that  kind 
of  relief ;  for,  if  it  did,  to  what  purpose  were  there  actions  on  the  case 
and  of  covenant  ?  and  Coke,  C.J.,  adding,  that  to  enforce  performance 
would  subvert  the  covenantor's  intention,  which  was  that  he  should  be 
able  to  elect  between  granting  the  lease  and  paying  damages  {Bromage 
v.  Genning,  1616,  RoUe,  354,  368 ;  81  E.  R.  540). 

Such  protests,  however,  did  not  avail  to  prevent  the  development  and 
firm  establishment  of  the  Chancery  jurisdiction ;  and  with  reference  to 
the  last-cited  case,  a  Lord  Chancellor  (Lord  Erskine),  nearly  two  centuries 
later,  in  Halsey  v.  Grant,  1806, 13  Ves.  Jun.,  at  p.  76 ;  33  E.  R.  222 ;  9  R.  R. 
145,  made  the  following  trenchant  comment :  "  Bromage  v.  Genning,  in 
the  fourteenth  year  of  King  James  i.,  was  the  plainest  case  that  can 
be  stated;  and  the  ground,  taken  against  the  jurisdiction,  the  most 
untenable,  preposterous,  and  unjust." 

It  was,  however,  not  by  any  means  in  all  cases  of  contract  that  this 
jurisdiction  was  exercised.  The  power  which  had  brought  it  into  exist- 
ence naturally  made  its  own  conditions  with  respect  to  the  classes  of 
cases  in  which,  and  generally  with  respect  to  the  circumstances  under 
which,  it  would  grant  the  special  remedy  of  specific  performance. 

But,  naturally  again,  a  considerable  time  elapsed  before  the  ever- 
increasing  stream  of  authority  settled  down  into  flowing  with  a  placid 

/ 


542  SPECIFIC  PERFOKMANCE 

and  uninterrupted  current  within  well-defined  channels.  With  regard, 
for  instance,  to  such  questions  as  whether  specific  performance  of  con- 
tracts for  personal  services,  or  contracts  to  build  or  to  repair,  should  or 
should  not  be  granted,  how  far  a  Court  of  equity  ought  to  go  in  the 
direction  of  forcing  upon  a  purchaser  something  different  from  what  he 
had  bargained  for,  and  whether  part  payment  of  the  purchase-money 
or  payment  of  an  additional  rent  should  or  should  not  be  treated  as 
acts  of  part  performance  sufficient  to  take  a  case  out  of  the  Statute  of 
Frauds,  very  notable  fluctuations  and  divagations  of  judicial  opinion  are 
recorded  in  the  Eeports,  Indeed,  in  the  seventeenth  century  John 
Selden,  in  a  well-known  passage  {Table  Talk,  2nd  ed.  by  Singer,  at  p.  49), 
went  so  far  as  to  say :  "  Equity  in  Law  is  the  same  as  the  Spirit  in 
Religion,  what  everyone  pleases  to  make  it.  Sometimes  they  go  accord- 
ing to  Conscience,  sometimes  according  to  Law,  sometimes  according  to 
the  Rule  of  Court.  Equity  is  a  Roguish  thing:  for  Law  we  have  a 
measure,  know  what  to  trust  to ;  Equity  is  according  to  the  Conscience 
of  him  that  is  Chancellor,  and  as  that  is  larger  or  narrower,  so  is  Equity. 
'Tis  all  one  as  if  they  should  make  the  Standard  for  the  measure  we 
call  a  Foot,  a  Chancellor's  Foot :  what  an  uncertain  Measure  would  this 
be !  One  Chancellor  has  a  long  Foot,  another  a  short  Foot,  a  third  an 
indifferent  Foot :  'Tis  the  same  thing  in  the  Chancellor's  Conscience." 
However,  the  importance  of  certainty  and  uniformity  in  the  decisions 
of  Courts  of  equity  has  long  ago  become  fully  recognised  in  high  places. 
"  The  doctrines  of  this  Court,"  said  Lord  Eldon,  in  Gee  v.  Pritchard,  1818, 
2  Swans.,  at  p.  414 ;  36  E.  R.  670 ;  19  R.  R.  87,  "  ought  to  be  as  well 
settled  and  made  as  uniform  almost  as  those  of  the  common  law,  laying 
down  fixed  principles,  but  taking  care  that  they  are  to  be  applied  accord- 
ing to  the  circumstances  of  each  case.  I  cannot  agree  that  the  doctrines 
of  this  Court  are  to  be  changed  with  every  succeeding  judge.  Nothing 
would  inflict  on  me  greater  pain,  than  the  recollection  that  I  had  done 
anything  to  justify  the  reproach  that  the  equity  of  this  Court  varies  like 
the  Chancellor's  foot." 

And  so,  out  of  a  long  course  of  decisions  by  Lord  Chancellors  and 
other  equity  judges  on  the  subject  of  specific  performance  and  matters 
incidental  to  it,  there  was  gradually  evolved  (see  'per  Jessel,  M.R,,  in 
In  re  Hallett's  Estates,  1879,  13  Ch.  D.,  at  p.  710)  a  body  of  settled 
principles  and  rules  by  which  the  exercise  of  the  jurisdiction  now 
under  consideration  is,  in  the  present  day,  guided  and  limited  almost, 
if  not  quite,  as  strictly  as  if  they  had  been  embodied  in  a  statutory 
code. 

Hence  it  has  come  to  pass  that,  though  the  jurisdiction  has  often  been 
termed  extraordinary,  as  being  outside  and  independent  of  the  ordinary 
course  of  proceedings  in  Courts  of  common  law,  its  exercise  is  now  a 
matter  of  everyday  occurrence ;  and  though  it  is  commonly  said  to  be 
discretionary,  the  discretion  referred  to  is  a  judicial  discretion,  exercis- 
able in  accordance  with  the  above-mentioned  principles  and  rules.  The 
Court  does  not  refuse  a  specific  performance  on  the  arbitrary  discretion 
of  the  judge  (per  Turner,  L.J.,  in  Watson  v.  Marston,  1853,  4  De  G., 
M.  &  G.,  at  p.  240).  So,  where  a  contract  binding  in  equity  is 
proved,  and  no  principle  or  rule  of  the  Court  prohibits  the  exercise 
of  the  jurisdiction,  the  remedy  of  a  judgment  for  specific  performance, 
though  strictly  not  a  matter  of  right,  is  practically  granted  as  a  matter 
of  course  (see  Lamare  v.  Dixon,  1873,  L.  R.  6  H.  L,  at  p.  423 ;  Leech  v. 
Schweder,  1874,  L.  R.  9  Ch.,  at  p.  467 ;  and  Haywood  v.  Cope,  1858,  25 


SPECIFIC  PEEFORMANCE  543 

Beav.,  at  pp.  151-153).  "Supposing,"  said  Grant,  M.E.,  in  Hall  v. 
Warren,  1804,  9  Ves.,  at  p.  608,  "  the  contract  to  have  been  entered  into 
by  a  competent  party,  and  to  be  in  the  nature  and  circumstances  of  it 
unobjectionable,  it  is  as  much  of  course  in  this  Court  to  decree  a  specific 
performance,  as  it  is  to  give  damages  at  law." 

Equity  may  follow  the  Law,  but  she  walks  arm-in-arm  with* 
Precedent;  and  with  regard  to  specific  performance  it  is  particularly 
true  that,  "  after  all,  the  question  to  what  extent  a  Court  of  equity 
will  go  is  very  largely  one  of  authority  as  to  what  has  been  done 
before"  {per  Rigby,  L.J.,  in  In  re  Scott  and  Alvarez  Contract,  [1895] 
2  Ch.,  at  p.  615). 

It  may  here  be  noticed  that  the  peculiar  jurisdiction  under  con- 
sideration is  one  which  the  Court  of  Chancery  used  to  exercise  in 
relation  to  executory,  as  distinguished  from  executed,  contracts.  "  There 
is  a  class  of  suits  in  this  Court,"  said  Lord  Selborne,  in  Wolverhampton, 
etc.,  Ely.  Co.  v.  L.  &  N.-  W.  Rly.  Co.,  1873,  L.  E.  16  Eq.,  at  p.  439,  "  known 
as  suits  for  specific  performance  of  executory  agreements,  which  instru- 
ments are  not  intended  between  the  parties  to  be  the  final  instruments 
regulating  their  mutual  relations  under  their  contracts.  We  call  those 
executory  contracts,  as  distinct  from  executed  contracts,  and  we  call 
those  contracts  'executed'  in  which  that  has  been  already  done  which 
will  finally  determine  and  settle  the  relative  positions  of  the  parties,  so 
that  nothing  else  remains  to  be  done  for  that  particular  purpose.  The 
common  expression  '  specific  performance,'  as  applied  to  suits  known  by 
that  name,  presupposes  an  executory  as  distinct  from  an  executed  agree- 
ment, something  remaining  to  be  done,  such  as  the  execution  of  a  deed 
or  a  conveyance,  in  order  to  put  the  parties  in  the  position  relative  to 
each  other  in  which  by  the  preliminary  agreement  they  were  intended 
to  be  placed.  Of  course,  if  you  pass  from  the  technical  to  the  etymo- 
logical effect  of  the  words,  'specific  performance'  might  signify  any 
direction  given  by  the  Court  for  the  doing  of  anything  whatever  in 
specie ;  and  I  cannot  help  thinking  that  in  this  class  of  cases  a  little 
confusion  has  sometimes  arisen  from  transferring  considerations  applic- 
able to  suits  for  specific  performance,  properly  so  called,  to  questions 
which  have  arisen  as  to  the  propriety  of  the  Court  requiring  something 
or  other  to  be  done  in  specie."  In  a  recent  case  {Molynevx  v.  Richard, 
[1906]  1  Ch.  34)  performance  in  specie  was  ordered  of  a  covenant  to 
build  contained  in  a  lease  (see,  too,  Muller  v.  Trafford,  [1901]  1  Ch.  54, 
where  such  performance  of  a  covenant  for  renewal  in  an  underlease  was 
unsuccessfully  claimed) ;  but  the  performance  or  observance  in  specie  of 
covenants  or  stipulations  contained  in  executed  contracts  has  more 
usually  been  indirectly  enforced  by  the  Court  by  means  of  an  injunction 
{e.g.  Const  v.  Harris,  1825,  Turn.  &  E.  496). 

Extent  and  Limits  of  the  Jurisdiction. 

The  foundation  of  the  equitable  jurisdiction  in  specific  performance 
being  the  inadequacy  of  the  common-law  remedy  for  breach  of  contract, 
there  is  a  primd  facie  case  for  the  exercise  of  the  jurisdiction  whenever 
it  appears  that  one  of  the  parties  to  a  contract  binding  in  equity  has 
committed  a  breach  of  it,  and  that  no  remedy  at  all,  or  no  complete 
remedy,  is  available  at  common  law  to  the  party  aggrieved.  The 
category  of  such  cases  of  contract  is  a  wide  one,  including  all  binding 
contracts  relating  to  the  sale  or  lease  of  land  (in  the  widest  sense  of 

/ 


544  SPECIFIC  PERFORMANCE 

that  word),  or  an  interest  in  land,  and  also  a  considerable  number  of 
contracts  relating  to  personal  property,  and  some  relating  to  personal 
acts.  It  will  be  convenient  to  deal  with  contracts  relating  to  land 
separately  from  other  specifically  enforceable  contracts,  because  the 
former  are  especially  afiected  by  the  Statute  of  Frauds,  and  by  the 
equitable  doctrines  or  principles  concerning  part  performance  and  com- 
pensation ;  but  before  proceeding  to  consider  in  more  detail  the  cases  in 
which  specific  performance  can  be  enforced,  it  may  be  well  to  clear  the 
ground  by  mentioning  some  classes  of  cases  in  which  the  principles  and 
rules  of  Courts  of  equity  cause,  them  to  refuse  to  interfere  by  granting 
that  form  of  relief. 

The  Court,  then — that  is  to  say,  the  tribunal  possessing,  in  regard 
to  the  particular  case  before  it,  the  equitable  jurisdiction  in  specific 
performance  formerly  exercised  by  the  Court  of  Chancery — will  refuse 
that  remedy  in  the  following  cases,  viz. : — 

(1)  Where  the  common-law  remedy  is  adequate ;  as,  for  instance,  in 
cases  of  contracts  for  sale  of  Government  stock  or  ordinary  articles  of 
merchandise;  for  there  pecuniary  damages,  calculated  on  the  market 
price  of  the  stock  or  goods,  are  practically  as  complete  a  remedy  to  the 
purchaser  as  the  actual  delivery  of  them ;  because,  with  the  money 
which  he  gets  as  damages,  he  can  go  into  the  market  and  buy  a  like 
quantity  of  stock  or  goods  {Cud  v.  Rutter,  1720, 1  P.  Wms.  570 ;  24  E.  R. 
521 ;  2  Wh.  &  T.  Equity  Cases,  7th  ed.,  416).  On  this  principle  the  Court 
will  not  generally,  it  is  conceived,  grant  specific  performance  of  a  contract 
to  let  property  for  a  single  year,  or,  it  fortiori,  for  a  single  day  {Clayton 
V.  Illingwo7'th,  1853, 10  Hare,  at  p.  452 ;  68  E.  R.  1003 ;  Lavery  v.  Pursell, 
1888,  39  Ch.  D.,  at  p.  519  ;  Glasse  v.  Woolgar,  1897,  41  Sol.  J.  573) ; 
though  a  contract  to  let  from  year  to  year  may  be  specifically  enforced 
{Lever  v.  Koffler,  [1901]  1  Ch.  543 ;  cp.  Manchester  Brewery  Co.  v.  Coombs, 
[1901]  2  Ch.,  at  p.  616).  So,  too,  specific  performance  will  not  be  granted 
of  a  contract  to  exercise  in  a  particular  way  a  testamentary  power  of 
appointment.  The  breach  of  such  a  contract  affords  ground  for  a  claim 
to  damages  only  {In  re  Parkin,  [1892]  3  Ch.  510;  In  re  Lawley,  [1902] 
2  Ch.,  at  pp.  677,  804,  805;  affirmed,  [1903]  A.  C.  411). 

(2)  Where  the  Court  would  be  unable  to  superintend  or  enforce 
effectually  the  execution  of  its  judgment;  as  in  most  cases  of  contracts 
involving  a  continuous  series  of  acts,  such  as  contracts  for  the  building  of 
houses,  the  working  of  mines,  or  the  construction  of  railways  ( Wilkinson 
V.  Clements,  1872,  L.  R.  8  Ch.,  at  p.  112 ;  JVheatley  v.  Westminster  Brymho 
Co.,  1869,  L.  R.  9  Eq.,  at  pp.  551,  552 ;  Peto  v.  Brighton,  etc.,  Co.,  1863, 
1  Hem.  &  M.  468 ;  71  E.  R.  205 ;  Kay  v.  Johnson,  1864,  2  Hem.  &  M. 
118;  71  E.  R.  406;  Stewart  v.  Kennedy,  1890,  15  App.  Cas.,  at  p.  104). 
Note,  however,  that  there  is  an  exception  from  this  rule  in  cases 
where — (i.)  The  buildings  or  other  works  of  which  performance  is  sought 
are  defined  by  the  contract ;  (ii.)  the  plaintiff  seeking  performance  has  a 
substantial  interest  in  having  the  contract  performed,  which  is  of  such 
a  nature  that  he  cannot  adequately  be  compensated  by  damages  for 
breach  of  the  contract ;  and  (iii.)  the  defendant  has  by  the  contract 
obtained  possession  of  the  land  on  which  the  works  are  contracted  to  be 
done  (see  Wolverhampton  Corporation  v.  Emmons,  [1901]  1  K.  B.,  at 
pp.  524,  525 ;  Molyneux  v.  Richard,  [1906]  1  Ch.  34 ;  Rushhrooke  v. 
O'Sullivan,  [1908]  1  I.  R.  232,  where  an  inquiry  as  to  damages  was 
granted,  but  not  specific  performance ;  also  Ryan  v.  Mutual  Tontine,  etc.. 
Association,  [1893]  1  Ch.,  at  p.  128;  and  Todd  v.  Midland  Great  Western 
Co.,  1881,  9  L.  R.  Ir.,  at  p.  10). 


SPECIFIC  PEKFOEMANCE  545 

(3)  Where  the  party  coming  to  the  Court  does  not  come  with  perfect 
propriety  of  conduct,  or,  in  seeking  the  specific  performance,  is  calling 
upon  the  other  party  to  do  something  which  he  is  not  lawfully  com- 
petent to  do  {Harnett  v.  Yielding,  1805,  2  Sch.  &  Lef.,  at  p.  554;  9  K.  E., 
at  p.  101),  or  which  would  involve  a  breach  of  trust  (Mortlock  v.  Buller, 
1804,  10  Ves.  Jun.,  at  pp.  311,  312;  32  E.  E.  564;  cp.  Delves  v.  Gray, 
[1902]  2  Ch.,  at  p.  611). 

(4)  When,  from  the  circumstances,  it  is  doubtful  whether  the 
defendant  meant  to  contract  to  the  extent  that  he  is  sought  to  be 
charged  {Harnett  v.   Yielding,  ubi  supra). 

(5)  Where  the  Court  cannot  compel  specific  performance  of  th^/y,^ 
contract  as  a  whole  {By  an  v.  Mutual  Tontine,  etc..  Association,  [1893J*V^ 

1  Ch,,  at  pp.  123,  125 ;  and  distinguish  Odessa  Tramiuays  Co.  v.  Mendel,  w  ^  ^ 
1878,  8  Ch.  D.,  at  p.  244). 

(6)  Where  the  contract,  not  being  based  upon  a  valuable  considera- 
tion, is  a  merely  voluntary  agreement  or  nudum  pactum  {Jefferys  v. 
Jefferys,  1841,  Cr.  &  Ph.,  at  p.  141 ;  41  E.  E.  443 ;  54  E.  E.  249). 

(7)  Where  the  contract  is  in  its  nature  strictly  personal,  as,  for 
instance,  for  the  performance  of  personal  services  {Johnson  v.  Shrewsbury 
and  Birmingham  Ely.  Co.,  1853,  3  De  G.,  M.  &  G.  Ch.  914,  926 ;  43  E.  E. 
358,  362;  Bainhridge  v.  Smith,  1889,  41  Ch.  D.,  at  p.  474);  and 

(8)  Generally,  where,  regard  being  had  to  all  the  circumstances, 
the  enforcement  of  specific  performance  would  be  highly  unreasonable 
{Stewart  v.  Kennedy,  1890, 15  App.  Cas.,  at  p.  105),  or  otherwise  inequit- 
able, or  (as,  for  instance,  in  such  a  case  as  Glassc  v.  Woolgar,  cited  under 
head  (1)  above)  impracticable. 

Further,  although  a  contract  may,  on  the  face  of  it,  appear  to  be  a  fit 
subject  for  specific  enforcement,  there  may  have  been  some  circumstance 
connected  with  its  inception,  or  some  event,  act,  or  default  subsequent 
to  its  conclusion,  on  proof  of  which  the  Court  will  decline  to  interfere. 
Instances  of  such  circumstances,  events,  acts,  and  defaults  will  find  place, 
later  on  in  this  article,  under  the  heading  Grounds  of  Defence  {infra, 
pp.  570  et  seq.). 

Here,  too,  it  may  be  mentioned  that  there  is  one  case  in  which  the 
Court's  jurisdiction  in  specific  performance  is  expressly  restricted  by 
statute.  Sec.  47  of  the  Fines  and  Eecoveries  Act,  1833,  3  &  4  Will.  iv. 
c.  74,  enacts  that  "  in  cases  of  dispositions  of  lands  under  this  Act  by 
tenants  in  tail  thereof,  and  also  in  cases  of  consents  by  protectors  of 
settlements  to  dispositions  of  lands  under  this  Act  by  tenants  in  tail 
thereof,  the  jurisdiction  of  Courts  of  equity  shall  be  altogether  excluded, 
either  on  behalf  of  a  person  claiming  for  a  valuable  or  meritorious  con- 
sideration, or  not,  in  regard  to  the  specific  performance  of  contracts." 
But  this  enactment  does  not  prohibit  the  Court  from  specifically  enforc- 
ing a  contract  by  the  tenant  in  tail  of  an  estate  to  sell  the  fee  simple  or 
to  execute  a  disentailing  assurance — which  contracts  would,  before  the 
Act,  have  been  enforced  by  the  Court  of  Chancery  {A.-G.  v.  Day,  1748-9,. 
1  Ves.,  at  p.  224 ;  27  E.  E.  992)— but  only  prevents  the  Court  from  hold- 
ing such  a  contract  binding  upon  the  issue  in  tail  and  remainderman,  aa 
a  disposition  in  equity  under  the  Act  {Bankes  v.  Small,  1887,  36  Ch.  D. 
716). 

It  is,  perhaps,  hardly  necessary  to  add  that  a  promise  to  marry  is  not 

specifically  enforceable  in  this  country.     (As  to  the  former  jurisdiction 

of  the  Ecclesiastical  Courts  in  relation  to  such  promises,  see  Fry,  4th  ed., 

p.  7 ;  and  as  to  the  enforcement  of  such  promises  under  Eoman-Dutch 

VOL.  XIII.  35 


546  SPECIFIC  PERFORMANCE 

law,  and  in  Germany,  see  Law  Magazine  and  Review,  vol.  xxxviii.,  at 
p.  400.) 

Contracts  Relating  to  Land. 

Contracts  relating  to  land,  or  an  interest  in  land,  constitute  probably 
by  far  the  most  numerous  class  of  cases  in  which  Courts  of  equity  are 
asked  to  grant  the  relief  of  a  judgment  for  specific  performance ;  and  that 
form  of  relief  is,  indeed,  especially  appropriate  to  such  cases.  "As  to  the 
cases  of  contracts  for  purchase  of  lands,  or  things  that  relate  to  realties," 
said  Lord  Hardwicke  in  Buxton  v.  Lister,  1746,  3  Atk.,  at  p.  384 ;  26  E.  R. 
1020,  "those  are  of  a  permanent  nature,  and  if  a  person  agrees  to  purchase 
them,  it  is  on  a  particular  liking  to  the  land,  and  is  quite  a  different  thing 
from  matters  in  the  way  of  trade." 

The  jurisdiction  exercised  by  English  Courts  of  equity  over  contracts 
relating  to  real  property  is  not  confined  to  cases  where  the  real  property 
is  situate  in  England,  ^quitas  agit  in  personam ;  and  accordingly,  if 
the  party  against  whom  it  is  desired  to  enforce  a  contract  respecting 
land  situate  abroad  is  in  this  country,  an  action  for  specific  performance 
may  be  maintained  against  him  here,  and  the  Court,  by  bringing  the 
weight  of  its  process  to  bear  upon  his  person,  will  compel  him  to  perform 
his  contract,  though  it  cannot  by  its  judgment  act  directly  upon  the  land 
itself.  Thus  in  the  leading  case  of  Penn  v.  Lord  Baltimore,  1750,  1  Ves. 
444;  27  E.  R.  1132,  Lord  Hardwicke  decreed  specific  performance  of  a 
contract  relating  to  the  boundaries  of  the  Provinces  of  Pennsylvania  and 
Maryland  in  North  America  (see,  too.  Lord  Cranstoun  v.  Johnston,  1793, 
3  Ves.  Jun.,  at  p.  182 ;  30  E.  R.  958  ;  3  R.  R.  80;  per  Lord  Selborne  in 
Ewing  v.  Orr-Ewing,  1883,  9  App.  Cas.,  at  p.  40  ;  and  Duder  v.  Amster- 
damsch  Trustees  Kantoor,  [1902]  2  Ch.,  at  pp.  141,  142). 

Further,  the  contracts  of  the  class  now  under  consideration  which  are 
specifically  enforceable  comprise  not  only  agreements  voluntarily  entered 
into  by  the  contracting  parties,  but  also  bargains  made  under  the  stress 
of  legislative  enactment— as,  for  example,  by  virtue  of  the  compulsory 
powers  of  purchase  conferred  by  the  Lands  Clauses  Consolidation  Act, 
1845 — between  the  donees  of  such  powers  and  those  over  whom  they 
have  become  authorised  to  exercise  them.  After  notice  to  treat  has  been 
given,  and  the  price  has  been  ascertained,  a  contract  or  quasi-contract  is 
established  on  which  an  action  for  specific  performance  can  be  maintained 
either  by  the  vendor  or  by  the  purchaser  {Harding  v.  Metropolitan  Bly. 
Co.,  1872,  L.  R.  7  Ch.,  at  p.  158 ;  Ln  re  Pigott  and  the  Great  Western  Bly. 
Co.,  1881,  18  Ch.  D.,  at  p.  150). 

It  may  here  be  noticed  that,  when  a  tenant  is  in  possession  of  land 
under  a  contract  for  a  lease  of  which  specific  performance  could  and 
would  be  decreed  by  the  High  Court  of  Justice,  he  is  regarded  and 
treated  in  that  Court  as  holding  on  the  same  terms,  and  with  and  subject 
to  the  same  rights  and  liabilities,  as  if  the  lease  had  been  actually 
granted  {Walsh  v.  Lonsdale,  1882,  21  Ch.  D.,  at  pp.  14,  15;  explained  in 
Manchester  Brewery  Co.  v.  Coomhs,  [1901]  2  Ch.,  at  pp.  617,  618 ;  Lowther 
V.  Heaver,  1889, 41  Ch.  D.,  at  p.  264.  Distinguish,  Foster  v.  Beeves,  [1892] 
2  Q.  B.  255 ;  Friary  Holroyd  &  Healey's  Breweries  v.  Singleton,  [1899] 
1  Ch.  86;  2Ch.  261). 

The  Statute  of  Frauds. 

Whether  the  land  in  question  in  any  particular  case  is  situate  in 
England  or  abroad,  the  right  of  a  party  to  a  contract  concerning  it  to  sue 


SPECIFIC  PERFOEMANCE  547 

the  other  party  in  this  country  (see  per  Lindley,  L.J.,  in  Rochefoucauld 
V.  Boustead,  [1897]  1  Ch.,  at  p.  207)  is,  as  a  rule,  very  materially  affected 
by  the  Statute  of  Frauds,  29  Car.  ii.  c.  3.  For  by  the  4th  section  of  that 
statute  it  is  enacted  that  "  no  action  shall  be  brought  whereby  to  charge 
any  person  .  .  .  upon  any  contract  or  sale  of  lands,  tenements,  or  here- 
ditaments, or  any  interest  in  or  concerning  them  .  .  ,  unless  the  agree- 
ment upon  which  such  action  shall  be  brought,  or  some  memorandum  or 
note  thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereunto  by  him  lawfully  authorised." 
The  "  action "  referred  to  in  the  above  4th  section  was  an  action  at 
common  law.  Suits  in  equity  were  not  within  the  words  of  the  section, 
but  they  were  within  the  spirit  and  meaning  of  it ;  and  Courts  of  equity 
have  always  followed  the  law  by  acting  in  obedience  to  the  statute 
{Hovenden  v.  Annesley,  1805,  2  Sch.  &  Lef.,  at  p.  630 ;  Ktwx  v.  Gye,  1872, 
L.  R.  7  H.  L.,  at  p.  674,  except  in  certain  classes  of  cases  which  will  be 
dealt  with  later  on,  see  p.  551).  Accordingly,  in  the  case  of  a  contract 
oi  the  class  now  under  consideration,  the  party  suing  in  England  for 
specific  performance  must,  in  order  to  establish  his  case,  prove  not  only 
that  a  contract  has  been  entered  into,  which,  if  the  above-quoted  enact- 
ment were  out  of  the  way,  would  be  binding  and  enforceable,  but  also 
(unless  his  case  falls  within  one  of  the  recognised  exceptions  from  the 
operation  of  the  statute)  that  the  terms  of  the  contract  are  evidenced  in 
the  manner  which  the  statute  prescribes.  It  is  to  be  observed,  however, 
that  the  statute  does  not  render  void,  or  illegal,  a  contract  which  is  not 
■evidenced  in  accordance  with  its  requirements,  but  only  bars  the  legal 
remedy  of  an  action  by  which  the  contract  might  otherwise  have  been 
enforced  (Maddison  v.  Alderson,  1883,  8  App.  Cas.,  at  pp.  474,  488).  It 
relates  to  the  kind  of  proof  required  in  this  country  to  enable  a  plaintiff 
suing  here  to  establish  his  case  here,  and  in  that  sense  regulates  procedure 
here  {Rochefoucauld  v.  Boustead,  [1897]  1  Ch.,  at  p.  207).  And  one  of  the 
results  of  this  is,  that  if,  in  a  case  where  the  provisions  of  the  statute 
have  not  been  complied  with,  the  party  sued,  being  sui  juris,  chooses  to 
waive  that  defect,  specific  performance  of  the  contract,  if  in  other  respects 
unobjectionable,  may  be  enforced  against  him.  Further,  the  "  memo- 
randum or  note "  need  not  be  contemporaneous  with  the  contract.  It 
is  sufficient  if  it  comes  into  existence  at  any  time  before  the  commence- 
ment of  the  action  to  enforce  the  contract  {In  re  Holland,  [1902]  2  Ch.,  / 
at  pp.  375,  382,  386). 

Passing  now  from  these  preliminary  observations  to  a  more 
detailed  consideration  of  the  above-quoted  language  of  this  im- 
portant 4th  section  of  the  Statute  of  Frauds,  it  will  be  noticed, 
in  the  first  place,  that  its  operation  extends  to  every  "contract 
or  sale"  —  which  words  are  to  be  construed  according  to  their 
literal  grammatical  meaning  {per  Kay,  J.,  in  M'Manus  v.  Cooke,  1887, 
35  Ch.  D.,  at  p.  687) — "of  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  conceiving  them."  Accordingly,  not  only  sales  out  and  out 
of  freeholds,  copyholds,  or  leaseholds,  including  sales  by  public  auction 
{Maddison  v.  Alderson,  1883,  8  App.  Cas.,  at  p.  488),  and  agreements 
relating  to  such  sales,  but  also  agreements  for  leases  (see  e.g.  Zimbler  v. 
Abrahams,  [1903]  1  K.  B.  577 ;  and  Thursby  v.  Eccles,  1900,  70  L.  J. 
Q.  B.  91),  and  all  other  contracts  touching  some  interest  in  land — as,  for 
instance,  a  contract  to  sell  debentures  charged  on  land  {Driver  v.  Broad, 
[1893]  1  Q.  B.  539),  to  assign  a  share  of  partnership  assets  comprising 
land  {Gray  v.  Smith,  1889,  43  Ch.  D.  208),  or  even  to  sell  the  building 


548  SPECIFIC  PERFOFwMANCE 

materials  composing  a  house  which  at  the  time  of  the  contract  is  standing 
on  land  {Lavery  v.  Pursell,  1888,  39  Ch.  D.  508) — fall  within  the  pro- 
vision of  the  statute.  It  will  not,  however,  be  held  to  apply,  unless, 
by  the  terms  of  the  contract,  the  sale  of  land,  or  some  interest  in  or 
concerning  land,  is  dealt  with  as  part  of  the  contract  (Boston  v.  Boston, 
[1904]  1  K.  B,  at  p.  127). 

In  the  next  place,  the  statute  prescribes  that,  in  cases  falling  within 
it,  "  the  agreement,  or  some  memorandum  or  note  thereof,"  must  be  "  in 
writing"  It  does  not,  however,  prescribe  any  particular  form  of  docu- 
ment. Therefore  any  kind  of  writing,  however  informal,  may  do; 
telegrams,  for  example,  or  letters,  or  even  an  entry  in  a  man's  own 
diary  (see  Coupland  v.  Arrowsmith,  1868,  18  L.  T.  N.  S.  755 ;  Kennedy 
V.  Lee,  1817,  3  Mer.,  at  pp.  447,  450  ;  36  E.  R.  172,  173 ;  17  E.  E.  110  ; 
In  re  Hoyle,  [1893]  1  Ch.,  at  pp.  98,  100);  and  even  a  statement  in  an 
affidavit  has  been  held  to  be  in  point  of  form  sufhcient  {Barkworth  v. 
Young,  1856,  4  Drew.,  at  p.  17).  And  it  is  to  be  remembered  that  in 
Acts  of  Parliament,  unless  the  contrary  intention  appears,  expressions 
referring  to  "  writing "  are  to  be  construed  as  including  references  to 
printing,  lithography,  and  other  modes  of  representing  or  reproducing 
worda  ^n  a  visible  form  (Interpretation  Act,  1889,  s.  20). 

Further,  the  statute  does  not  prescribe,  and  the  Court  accordingly 
does  not  require,  that  the  whole  of  the  contract  be  expressed  in  a  single 
document.  It  is  allowable  for  a  plaintiff  to  furnish  the  requisite  written 
evidence  of  the  contract  which  he  is  seeking  to  establish  by  reading 
together  two  or  more  paper  writings,  provided  that  they  are  such  as  to- 
constitute  in  substance  one  document — as,  for  instance,  a  letter  and  the 
envelope  in  which  it  was  posted  {Pearce  v.  Gardner,  [1897]  1  Q.  B.  688) — 
or  that  the  writing  containing  the  signature  of  the  defendant  or  his- 
agent  refers  to  the  other  writing  or  writings  so  as  to  connect  them  all 
with  one  another,  parol  evidence  being  admissible  to  identify  the  actual 
writing  or  writings  referred  to  (see  on  this  subject,  Ridgway  v.  Wharton, 
1856-57,  6  CI.  H."L.  238 ;  Clinan  v.  Cooke,  1802,  1  Sch.  &  Lef.,  at  p.  33 ; 
9  E.  E.,  at  p.  7 ;  Shardlow  v.  Cotterell,  1881,  20  Ch.  I).  90 ;  Oliver  v. 
Hunting,  1890,  44  Ch.  D.,  at  p.  207). 

The  commonest  instance  of  this  kind  of  thing  occurs  in  the  case  of  a 
contract  constituted  by  correspondence.  It  must,  however,  be  borne  in 
mind  that,  in  such  a  case,  the  correspondence  which  has  passed  between 
the  parties,  or  their  agents,  is  to  be  read,  and  will  be  considered  by  the 
Court,  as  a  whole.  For  two  letters  picked  out  of  a  correspondence,  and 
read  by  themselves,  might  appear  to  constitute  a  complete  contract;, 
whereas,  on  perusal  of  the  rest  of  the  letters,  it  might  be  obvious  that 
neither  of  the  parties  had  ever  intended  to  conclude  a  contract  with  the 
other  party,  and  that  in  truth  the  matter  had  never  passed  beyond  the 
stage  of  negotiation  {Hussey  v.  Horne-Payne,  1879,  4  App.  Cas.  311).  But 
if  once  a  complete  contract  has  been  constituted  by  correspondence,  it 
will  not  be  affected  by  subsequent  letters  containing  negotiations  on  new 
points  raised  for  the  first  time  after  the  conclusion  of  the  contract 
{Bellamy  v.  Debenham,  1890,  45  Ch.  D.  481). 

It  often  happens,  though,  that  letters  or  other  informal  documents 
relied  on  by  a  plaintiff  as  evidencing  a  contract  contain  expressions 
pointing  to  an  intention  or  desire  on  the  writer's  part  to  have  the  agreed 
terms  embodied  in  a  formal  instrument  of  agreement.  In  such  cases, 
it  is  a  question  of  construction  whether  a  complete  enforceable  contract 
has  or  has  not  been  concluded.     On  the  one  hand,  if,  for  instance,  aa 


SPECIFIC  PERFORMANCE  549 

intending  purchaser  of  land  writes  a  letter  agreeing  to  buy  it,  subject, 
expressly,  to  a  formal  contract  being  prepared  and  signed,  the  letter 
means  what  it  says ;  and  unless  and  until  a  formal  contract  is  signed, 
there  is  no  concluded  contract  (  Winn  v.  Bull,  1877,  7  Ch.  D.,  at  p.  32 ; 
Lloyd  V.  Nowell,  [1895]  2  Ch.  744 ;  Brien  v.  Swainson,  1877,  1  L.  R.  Ir. 
135).  If,  on  the  other  hand,  there  is  a  simple  acceptance  in  writing  of 
an  offer  to  sell  or  purchase,  accompanied  by  words  expressive  of  the 
acceptor's  desire  to  have  the  terms  of  the  arrangement  embodied  in  some 
more  formal  document,  such  words  will  not  prevent  the  Court  from 
enforcing  the  contract  constituted  by  the  offer  and  acceptance  {Bossiter 
V.  Miller,  1878,  3  App.  Cas.  1137-9 ;  Bonnewell  v.  Jenkins,  1878,  8  Ch.  D. 
70 ;  Filhy  v.  Hounsell,  [1896]  2  Ch.  737 ;  North  v.  Fercival,  [1898]  2  Ch. 
128 ;  Lucas  v.  Hall,  [1899]  W.  N.  92). 

Next,  as  to  the  contents  of  the  written  agreement,  memorandum, 
or  note.  The  statute  gives  no  explicit  direction  as  to  what  terms  of  a 
contract  falling  within  its  scope  must  be  expressed  in  writing ;  but  the 
matter  has  been  abundantly  elucidated  by  judicial  decisions. 

The  general  principle  is  that  the  essential  terms  of  the  contract  must 
be  expressed  in  writing.  What,  then,  are  the  essential  terms  ?  Con- 
tracts falling  within  the  scope  of  the  statute  vary  so  much  in  their 
details,  that  it  is  not  practicable  to  give  an  exhaustive  and  universally 
applicable  answer  to  this  question ;  but  there  are  certain  matters  which 
may  be  indicated  as  being  necessary  to  be  expressed.  Every  contract 
in  writing  for  the  sale  of  land,  or  an  interest  in  land,  must  contain 
words  which  show,  or  provide  means  of  ascertaining,  (i.)  who  the  con- 
tracting parties  are ;  (ii.)  what  the  subject-matter  of  the  contract  is ; 
and  (iii.)  what  the  price  or  other  consideration  to  be  paid  or  given  by 
ihe  purchaser  is. 

The  parties  need  not  be  actually  named  in  the  writing ;  any  descrip- 
tion sufficient  to  identify  the  person  referred  to  will  do — "  the  proprietor," 
for  instance  {Sale  v.  Lambert,  1874,  L.  R.  18  Eq.  1 ;  see,  too,  Carr  v.  Lynch, 
[1900]  IXh.  613,  a  case  of  identification  of  an  intended  lessee),  though 
not  "  the'vendor  "  {Potter  v.  Duffield,  1874,  L.  R.  18  Eq.  4) ;  it  is  sufficient 
if  by  reasonable  intendment  it  can  be  inferred  from  the  writing  who  the 
parties  to  the  contract  are  {In  re  Holland,  [1902]  2  Ch.,  at  p.  385);  and 
a  memorandum  may  sufficiently  indicate  the  contracting  parties,  although 
the  persons  appearing  on  the  face  of  it  to  be  the  vendor  and  the  pur- 
chaser are,  in  fact,  agents  for  undisclosed  principals,  who  the  principals 
are  being  provable  by  parol,  whether  the  fact  of  agency  can  be  gathered 
from  the  written  document  or  not  {Filhy  v.  Hounsell,  [1896]  2  Ch.,  at 
p.  740).  Id  certum  est  quod  certum  reddi  potest  (see  per  Lord  Cairns  in 
Bossiter  v.  Miller,  1878,  3  App.  Cas.,  at  p.  114,  and  Pickles  v.  Sutcliffe, 
[1902]  W.  N.  200);  and  the  same  principle  is  applicable  to  the  descrip- 
tion of  the  subject-matter  of  contract  {e.g.  Plant  v.  Bourne,  [1897]  2  Ch. 
281,  where  "  twenty-four  acres  of  land,  freehold,  at  T.,  in  the  parish  of 
D.,"  was  held  by  the  Court  of  Appeal  to  be  a  sufficient  description,  North 
v.  Percival,  [1898]  2  Ch.  128,  and  Markham  and  Darter's  Case,  [1899] 
1  Ch.,  at  p.  429),  and  also  to  the  price  or  other  consideration,  as  where 
the  contract  is  to  sell  at  a  fair  valuation,  or  at  such  a  price  as  A.  (a  third 
person)  shall  fix ;  but,  in  the  last-mentioned  case,  the  contract  is  not 
enforceable  unless  or  until  A.  has  fixed  the  price  {Milnes  v.  Gery,  1807, 
14  Ves.  Jun.  400, 407 ;  33  E.  R.  574,  577  ;  9  R.  R.  307).  Parol  evidence 
is  admissible  to  identify  the  subject-matter  of  contract  with  the  descrip- 
tion of  it  in  the  writing  {e.g.  MMurray  v.  Spicer,  1868,  L.  R.  5  Eq.,  at 
pp.  536,  537). 

/ 


550  SPECIFIC  PEEFOEMANCE 

It  is  not  absolutely  necessary,  in  the  case  of  a  sale  of  land,  that  the 
estate  or  interest  to  be  sold  should  be  specified  in  writing ;  for  a  contract 
simply  to  sell  land  is  implied  by  law  to  be  a  contract  to  sell  the  whole 
of  the  vendor's  interest  in  it,  and  that  interest  will  be  similarly  implied 
to  be  an  estate  in  fee  simple  {Bower  v.  Cooper,  1842,  2  Hare,  408 ; 
Hughes  v.  Parker,  1841,  8  Mee.  &  W.  244;  58  E.  E.  685).  But,  in  the 
case  of  a  contract  for  a  lease,  the  writing  must  show  not  only  (in  the 
manner  already  indicated)  the  parties,  the  subject-matter,  and  the  rent, 
but  also  the  length  of  the  term,  and  the  date  of  its  commencement 
{Marshall  v.  Berridge,  1881, 19  Ch.  D.  233  ;  Humphery  v.  Conyheare,  1899, 
106  L.  T.  J.  332),  which  date,  however,  may  be  collected  from  the  docu- 
ment read  as  a  whole  {In  re  Lander  aiid  Bagley's  Contract,  [1892]  3  Ch., 
at  p.  48),  or  may  be  ascertained  from  circumstances  referred  to  in  the 
document  {Phelan  v.  Tedcastle,  1885,  15  L.  E.  Ir.,  at  p.  175). 

With  respect  to  the  consideration,  it  has  been  distinctly  laid  down 
in  the  Court  of  Appeal  {In  re  Khara£:homa  Exploring  and  Prospecting 
Syndicate,  [1897]  2  Ch.,  at  pp.  464,  467;  see  also  ihid.,  at  top  of  p.  463), 
that  "a  contract  in  writing  must  express  as  part  of  the  contract  the 
consideration,"  and  that  "  if  you  have  a  document  in  writing  which  does 
not  show  in  writing  what  is  the  consideration,  it  is  not  a  contract  at  all 
in  writing — in  other  words,  a  document  which  only  discloses  part  of  a 
contract  is  not  a  contract  in  writing."  (See,  too,  South  Hetton  Coal  Co. 
V.  Haswell,  etc.,  Co.,  [1898]  1  Ch.,  at  p.  469 ;  and  consider  Kelly  v.  Walsh, 
1878,  1  L.  E.  Ir.,  at  p.  283). 

The  statute  further  prescribes  that  the  writing  must  be  "  signed  hy 
the  party  to  he  cliarged  therewith,  or  some  other  person  thereunto  hy  him 
lawfully  authorised,"  i.e.  his  agent  for  the  purpose  of  signing. 

"  Signed,"  not  "  subscribed ; "  therefore,  whether  the  name  occurs  in 
the  body  of  the  writing,  or  at  the  beginning,  or  at  the  end,  it  will  satisfy 
the  statute,  provided  it  is  intended  to  be  a  signature  governing  the  whole 
of  the  writing  {Evans  v.  Hoare,  [1892]  1  Q.  B.,  at  p.  597  ;  Caton  v.  Caton, 
1867,  L.  E.  2  H.  L.,  at  p.  143;  distinguish  Huckleshy  v.  Rook,  [1900] 
W.  IST.  45;  82  L.  T.  117);  for  the  statute  does  not  make  any  signed 
instrument  a  binding  contract  by  reason  of  the  signature,  contrary  to 
the  intention  of  the  signatory  {Hussey  v.  Horne-Payne,  1879,  4  App.  Cas., 
at  p.  323 ;  Pattle  v.  Hornihrook,  [1897]  1  Ch.  25).  A  signature  in  pencil 
may  be  binding  {Lucas  v.  James,  1849,  7  Hare,  at  p.  419);  and  even  a 
printed  or  stamped  name  may  satisfy  the  statute  {Schneider  v.  Norris, 
1814,  2  M.  &  S.  286;  Bennett  v.  Brumfit,  1867,  L.  E.  3  C.  P.  28,  31). 

"By  the  party  to  he  charged,"  not  "by  all  the  parties;"  accordingly, 
a  party  who  has  not  signed  (as,  for  instance,  in  the  case  of  an  accept- 
ance by  parol  of  a  written  offer)  may  enforce  a  contract  against  a  party 
who  has  signed  {Seton  v.  Slade,  1802,  7  Ves.  Jun.,  at  p.  275 ;  32  E.  E. 
112;  6  E.  E.  124;  Beuss  v.  Picksley,  1866,  L.  E.  1  Ex.  342;  Lever  v. 
Koffler,  [1901]  1  Ch.  543). 

"  Or  some  other  person,"  etc.  "Where  a  plaintiff  founds  upon  signature 
by  an  agent  for  the  defendant,  he  must  prove,  unless  it  is  admitted, 
that  the  alleged  agent  had  authority  not  merely  to  negotiate,  but  to 
sign,  on  his  principal's  behalf,  the  contract  sued  on  {Smith  v.  Wehster, 
1876,  3  Ch.  D.  49 ;  Godwin  v.  Francis,  1868,  L.  E.  5  C.  P.  2997i. ;  see,  too, 
Bosenhaum  v.  Belson,  [1900]  2  Ch.  267,  271,  as  to  authority  of  agent  for 
sale  to  sign  a  binding  contract  for  sale).  The  agent's  appointment  need 
not  be  in  writing  {Heard  v.  Pilley,  1869,  L.  E.  4  Ch.  548),  and  it  matters 
not  whether  his  authority  be  given  to  him  previously  to  the  contract, 


SPECIFIC  PEEFOEMANCE  551 

or  subsequently  by  the  principal's  ratification  of  his  act  {Ridgway  v. 
Wharton,  1857,  6  H.  L.  C,  at  pp.  296-7;  10  E.  E.  1310;  but  as  to  the 
requisites  of  a  binding  adoption  or  ratification  of  acts  done  without 
previous  authority,  see  Marsh  v.  Joseph,  [1897]  1  Ch.  213 ;  and  Keighley, 
Maxted  &  Co.  v.  Durant,  [1901]  A.  C.  240,  253,  289).  At  a  sale  by 
public  auction,  the  auctioneer  is  the  agent  not  only  of  the  vendor,  but 
also  of  the  purchaser,  the  highest  bidder ;  and  he  is  entitled  to  sign,  at 
the  time  and  as  part  of  the  transaction  (but  not  afterwards),  in  the 
names  and  on  behalf  of  both  parties,  a  memorandum  sufficient  to  satisfy 
the  statute  (Sims  v.  Landray,  [1894]  2  Ch.,  at  p.  320  ;  Bell  v.  Balls,  [1897] 
1  Ch.,  at  pp.  669,  671 ;  Reynolds  v.  Hooper,  19  T.  L.  E.  33).  But  delegahcs 
non  potest  delegare;  and,  accordingly,  the  auctioneer's  clerk  has  no 
authority  to  sign  as  the  purchaser's  agent,  unless  the  purchaser  has  by 
word,  sign,  or  otherwise  specially  authorised  him  so  to  do  {Bell  v.  Balls 
and  Sims  v.  Landray,  ubi  supra).  A  purchaser's  solicitor  has  not,  as 
such,  authority  to  bind  the  purchaser  by  signing  a  contract  of  purchase 
{Bowen  v.  Due  d'OrUans,  1900,  16  T.  L.  E.,  at  p.  227). 

Exceptions  from  the  Statute. 

It  has  already  been  noticed  that  the  provisions  of  the  4th  section  of 
the  Statute  of  Frauds  apply  in  terms  to  common-law  actions  only.  Courts 
of  equity  were  not  expressly  bound  by  those  provisions ;  and  accordingly, 
while  acting  generally  in  obedience  to  the  statute  (see  per  Lord  Erskine 
in  Buekmaster  v.  Harrap,  1807,  13  Ves.  Jun.,  at  p.  472 ;  6  E.  E.  132), 
those  Courts  have  in  some  cases — where  either  the  effect  of  following 
the  law  would  be  to  make  the  statute  (not  a  protection  against,  but)  an 
instrument  of  fraud,  or  the  case  has  been  otherwise  outside  the  mis- 
chief which  the  statute  was  intended  to  prevent — treated  contracts  as 
excepted  from  the  operation  of  the  statute.  These  exceptions  are  cases 
of  (i.)  fraud,  (ii.)  part  performance,  (iii.)  admission  by  the  defendant,  and 
(iv.)  sale  by  the  Court ;  and  each  of  them  calls  for  some  explanation. 

(i.)  Fraud. — The  principle  of  the  Court  is,  that  the  Statute  of  Frauds 
was  not  made  to  cover  fraud ;  and  it  does  not  prevent  the  proof  of  a  fraud 
{Lincoln  v.  Wright,  1859,  4  De  G.  &  J.  Ch.,  at  p.  22 ;  45  E.  E.  9 ;  Boche- 
foucauld  V.  Boustead,  [1897]  1  Ch.,  at  p.  206).  "  Cases  in  this  Court," 
said  Lord  Eldon,  in  Mestaer  v.  Gillespie,  1806,  11  Ves.  Jun.,  at  p.  628; 
32  E.  E.  1232;  8  E.  E.  266,  "are  perfectly  familiar,  deciding  that  a 
fraudulent  use  shall  not  be  made  of  that  statute  (the  Statute  of  Frauds), 
where  this  Court  has  interfered  against  a  party  meaning  to  make  it  an 
instrument  of  fraud,  and  said  he  should  not  take  advantage  of  his  own 
fraud ;  even  though  the  statute  has  declared  that,  in  case  those  circum- 
stances do  not  exist,  the  instrument  shall  be  absolutely  void;"  in 
connection  with  which  statement  it  is  to  be  remembered  that  (as  has 
been  mentioned  above,  p.  547),  the  Statute  of  Frauds  does  not  avoid 
a  contract  falling  within  its  scope,  but  only  affects  the  right  of  suing 
upon  it.  Accordingly,  if,  for  instance,  the  lack  of  written  evidence  of  a 
contract  is  owing  to  the  fraud  of  one  of  the  parties,  as  if  one  agreement 
in  writing  should  be  proposed  and  drawn,  and  another  fraudulently  and 
secretly  brought  in  and  executed  in  lieu  of  the  former,  in  this  or  such 
like  cases  of  fraud  equity  would  relieve,  even  against  the  words  of  the 
statute  {Viscountess  Montacute  v.  Maxwell,  1720,  1  P.  Wms.,  at  p.  618; 
24  E.  E.  541).  For  to  allow  any  other  construction  of  the  statute  would 
be  to  make  it  a  guard  and  protection  to  fraud,  instead  of  a  security 

/ 


552  SPECIFIC  PEEFORMANCE 

against  it,  as  was  the  design  and  intention  of  it  (Lord  Hardwicke  in 
Walker  v.  Walker,  1740,  2  Atk.,  at  p.  100 ;  26  E.  E.  462). 

(ii.)  Fart  Performance. — Where  a  parol  contract  has  been,  in  the 
view  of  the  Court,  partly  performed,  specific  performance  may  be 
enforced,  notwithstanding  the  absence  of  the  writing  prescribed  by  the 
statute.  This  is,  in  truth,  an  instance — though  such  an  important  one 
as  to  require  separate  discussion — of  the  application  of  the  principle 
enunciated  under  the  preceding  head  (i.).  For  the  ground  upon  which 
Courts  of  equity  interfere,  in  cases  of  this  sort,  is  that  otherwise  one 
party  to  a  contract  would  be  able  to  practise  a  fraud  upon  the  other 
(Story's  Equity  Jurisprudence,  s.  759).  It  would  be  against  conscience 
to  allow  a  party  who  had  entered  and  expended  his  money  upon  land  on 
the  faith  of  a  verbal  contract  to  be  treated  as  a  trespasser,  and  the  other 
party  to  enjoy  the  advantage  of  the  money  so  expended  {Bond  v.  Hopkins, 
1802,  1  Sch.  &  Lef.,  at  p.  433).  In  such  a  case,  the  party  seeking  to 
ignore  the  contract  is  really  "  charged,"  not  (within  the  meaning  of  the 
statute)  upon  the  contract  itself,  but  upon  the  equities  resulting  from 
the  acts  done  in  execution  of  the  contract.  In  other  words,  when  the 
statute  says,  in  effect,  that  no  action  is  to  be  brought  to  charge  any 
person  upon  a  contract  concerning  land  unless  it  is  evidenced  in  the 
manner  prescribed  by  the  enactment,  it  has  in  view  the  simple  case  in 
which  he  is  charged  upon  the  contract  only,  and  not  that  in  which  there 
are  equities  resulting  from  res  gestae  subsequent  to  and  arising  out  of  the 
contract  (see  per  Lord  Selborne  in  Maddison  v.  Alderson,  1883,  8  App. 
Cas.  467,  at  pp.  475,  476).  This  doctrine  concerning  part  performance 
appears  to  be  almost,  if  not  quite,  coeval  with  the  statute  (see,  for  instance, 
Hollis  V.  Edwards,  1683,  1  Vern.  159 ;  23  E.  E.  365,  and  Butcher  v. 
Stapely,  1685,  1  Vern.  363 ;  23  E.  E.  524) ;  and  it  has  been  illustrated 
by  a  great  number  and  variety  of  reported  cases.  From  these  it  has  to 
be  gathered  what  acts  will,  and  what  will  not,  be  regarded  nowadays  by 
the  Court  as  sufficient  acts  of  part  performance  to  take  a  case  out  of  the 
statute,  or,  in  other  words,  as  constituting  sufficient  grounds  for  the 
admission  of  parol  evidence  of  the  terms  of  a  contract  falling  primd  facie 
within  the  statute's  scope.  It  is  not  at  all  likely  that  the  limits  of  the 
doctrine  will  in  the  future  be  enlarged  (compare  Maddison  v.  Alderson, 
ubi  supra,  at  pp.  489,  491,  and  Lindsay  v.  Lynch,  1804,  2  Sch.  &  Lef.,  at 
p.  5 ;  9  E.  E.,  at  p.  57).  In  the  first  place,  then,  the  acts  relied  upon  as 
part  performance  must  be  unequivocally,  and  in  their  own  nature,  refer- 
able to  some  such  contract  as  that  alleged  {Maddison  v.  Alderson,  ubi 
supra,  at  p.  479).  Further,  "  nothing  is  considered  as  a  part-performance 
which  does  not  put  the  party  into  a  situation  that  is  a  fraud  upon  him, 
unless  the  agreement  is  performed"  {Clinanv.  Cooke,  1802,  1  Sch. &  Lef., 
at  p.  41 ;  9  E.  E.,  at  p.  9).  And  again,  "  it  is  not  enough  that  an  act 
done  should  be  a  condition  of,  or  good  consideration  for,  a  contract, 
unless  it  is,  as  between  the  parties,  such  a  part  execution  as  to  change 
their  relative  positions  as  to  the  subject-matter  of  the  contract" 
{Maddison  v.  Alderson,  ubi  supra,  at  p.  478).  Of  the  acts  which  have 
been  held  to  be  sufficient  to  exclude  the  statute,  the  following  are 
examples,  viz. :  possession  of  land  taken,  or  even  in  some  cases  continued, 
by  one  party,  after  the  contract,  with  the  knowledge  and  acquiescence 
of  the  other  party  {Morphett  v.  Jones,  1818,  1  Swans.,  at  p.  181 ;  36  E.  E. 
348;  18  E.  E.  48;  Hodson  v.  Heidand,  [1896]  2  Ch.  428,  434;  compare 
Dillwyn  v.  Llewelyn,  1862,  8  Jur.  N.  S.  425,  1068);  expenditure  of  money 
in  alterations  and  repairs  of  buildings  by,  or  by  the  authority  of,  the 


SPECIFIC  PERFOEMANCE  553 

tenant  in  possession,  with  the  landlord's  approval  ( Williams  v.  JEvaTis, 
1875,  L,  R.  19  Eq.  547) ;  alterations  and  improvements  effected  by  vendors 
at  the  purchaser's  request  (Dickinson  v.  Barrow,  [1904]  2  Ch.  339) ;  pay- 
ment of  rent  at  an  increased  rate  {Nunn  v.  Fahian,  1865,  L.  R.  1  Ch.  55  ; 
Conner  v.  Fitzgerald,  1883,  11  L.  R,  Ir.,  at  pp.  114,  115;  Miller  & 
Aldworth,  Ltd.  v.  Sharp,  [1899]  1  Ch.  622),  though  query  the  difference 
in  principle  between  such  payment  and  payment  of  purchase-money; 
and  a  wife's  return  to  cohabitation  with  her  husband  after  a  separation 
( Webster  v.  Wehster,  1853,  4  De  G.,  M.  &  G.  437 ;  43  E.  R.  577).  On 
the  other  hand,  acts  of  the  following  kind  will  not  be  treated  as  part 
performance,  viz. :  acts  merely  introductory  or  ancillary  to  a  contract 
(see  examples  collected  in  Story's  Equity  Jurisprudence,  s.  762,  and  in 
Maddison  v.  Alderson,  uhi  supra,  at  p.  480) ;  payment  of  part  or  even 
the  whole  of  the  purchase-money,  for  the  payment  of  money  is  an  equi- 
vocal act,  not  in  itself  indicative  of  a  contract  concerning  land  {Maddison 
V.  Alderson,  uM  supra,  at  p.  479) ;  payment  of  rent  in  advance,  without 
any  taking  of  possession  {Thursby  v.  Eccles,  1900,  70  L.  J.  Q.  B.  91);  and 
marriage,  for  the  statute  expressly  requires  "agreements  made  upon 
consideration  of  marriage  "  to  be  evidenced  by  some  writing  ( Taylor  v. 
Beech,  1749, 1  Ves.  298 ;  27  E.  R.  1042  ;  Warden  v.  Jones,  1857,  2  De  G. 
&  J.  Ch.,  at  p.  84 ;  44  E.  R.  919 ;  Caton  v.  Caton,  1866,  L.  R.  1  Ch.,  at 
p.  147 ;  see,  too,  In  re  Holland,  [1902]  2  Ch.  360). 

Further,  it  must  be  borne  in  mind  that  the  only  defect  which  part 
performance  cures  is  the  formal  one  of  want  of  written  evidence  of  a 
contract.  Part  performance  is  not  a  panacea.  It  presupposes  a  com- 
plete contract  {Lady  E.  Thyiine  v.  Earl  of  Glengall,  1848,  2  H.  L.  C,  at 
p.  158 ;  9  E.  R.  1052 ;  and  it  is  of  no  avail  to  prove  an  act  of  part  per- 
formance, unless  the  parol  evidence  thus  let  in  proves  plainly  and 
distinctly  {Price  v.  Salushury,  1863,  32  Beav.,  at  p.  459),  or  the  defendant 
admits,  a  contract  complete  in  its  terms,  and  such  in  all  respects  as  to 
be,  according  to  the  principles  and  rules  of  the  Court,  specifically 
enforceable.  So,  where  there  has  been  a  parol  contract  and  part 
performance,  but  the  case  is  one  in  which  specific  performance  could 
not  be  directed,  the  plaintiff  is  not  entitled,  by  virtue  of  the  part 
performance,  to  obtain  relief  in  damages  {Lavery  v.  Pursell,  1888, 
39  Ch.  D.,  at  pp.  518,  519). 

And  it  may  here  be  noticed  that  although,  on  the  one  hand,  where 
there  has  been  a  contract  in  writing  and  no  part  performance,  the  law 
presumes  that  the  writing  expresses  the  whole  of  the  contract,  and 
therefore  will  not  permit  it  to  be  varied  by  parol  evidence  (see,  how- 
ever, infra,  p.  579),  on  the  other  hand,  where  there  has  been  part 
performance,  parol  evidence  is  admissible  in  a  Court  of  equity  to  add 
to,  or  otherwise  vary,  the  terms  even  of  a  written  contract ;  for  what 
the  real  contract  ultimately  was  must  depend  on  the  combined  effect 
of  what  was  agreed  upon  in  writing  and  what  was  agreed  upon 
verbally  (see  per  Turner,  L.J.,  in  Price  v.  Salnsbury,  1863,  32  L.  J. 
Ch.,  at  p.  452;  Sutherland  v.  Briggs,  1841,  1  Hare,  at  p.  35; 
66  E.  R.  1940 ;  58  R.  R.  13 ;  Kelly  v.  Walsh,  1878,  1  L.  R.  Ir.,  at 
p.  283).  I3ut  the  party  seeking  to  enforce  the  contract  as  varied  must, 
in  order  to  succeed,  prove  that  the  other  party  understood  and  assented 
to  the  variation  {Earl  of  Darnley  v.  Proprietors,  etc.,  of  London,  Chatham 
and  Dover  My.,  1867,  L.  R.  2  H.  L.,  at  p.  60). 

The  applicability  of  the  doctrine  of  part  performance  has  not  been 
extended  by  the  Judicature  Act,  1873  36  &  37  Vict.  c.  66.     It  applies 

/ 


554  SPECIFIC  PERFOEMANCE 

in  the  High  Court  only  to  cases  to  which  it  would  have  applied  in  the 
Court  of  Chancery  {Britain  v.  Eossiter,  1879,  11  Q.  B.  D.  129).  But 
with  respect  to  the  limits  observed  by  the  Court  of  Chancery  in  apply- 
ing the  doctrine,  there  has,  since  the  passing  of  the  last-mentioned  Act, 
been  some  diversity  of  judicial  opinion.  In  Britain  v.  Bossiter,  ubi 
sujyra,  in  the  Court  of  Appeal,  all  the  judges  (Lord  Esher,  M.E.,  and 
Cotton  and  Thesiger,  L.JJ.),  substantially  concurred  in  the  opinion  that 
the  doctrine  was  confined  to  cases  of  contracts  relating  to  land,  or  to  some 
interest  in  land.  Subsequently,  in  Maddison  v.  Alderson,  1883,  8  App. 
Cas.,  at  p.  474,  Lord  Selborne  intimated  a  doubt  as  to  the  correctness 
of  that  opinion.  And  still  more  recently,  in  M'Manus  v.  Cooke,  1887, 
35  Ch.  L).  681,  697),  Kay,  J.,  expressed  the  view  that  the  doctrine 
applied  to  all  cases  in  which  a  Court  of  equity  would  entertain  a  suit 
for  specific  performance,  if  the  contract  alleged  had  been  in  writing,  and 
in  particular  that  it  applied  to  a  parol  agreement  for  an  easement, 
though  no  interest  in  land  was  intended  to  be  acquired.  This  much,  at 
any  rate,  may  safely  be  said,  that  the  great  majority  of  reported  cases 
in  which  the  doctrine  has  been  applied,  and  also  of  the  cases  in  which 
it  is  nowadays  invoked,  have  been  and  are  cases  of  contracts  concerning 
land,  or  some  interest  in  land  (see  per  Lord  Selborne  in  Maddison  v. 
Alderson,  ubi  supra,  at  p.  474). 

(iii.)  Admission  hy  Defendard. — The  object  of  the  Statute  of  Frauds 
was  to  prevent  frauds  and  perjuries,  the  legislature  evidently  thinking, 
in  framing  the  4th  section,  that  there  were  some  contracts  of  so 
important  a  nature  that  it  was  not  right  to  leave  them  to  depend  on  the 
slippery  testimony  of  men's  memories  {Lavery  v.  Pursell,  1888,  39  Ch.  D., 
at  p.  513).  But  where  a  plaintiff  pleads  a  contract  to  the  enforcement 
of  which  the  want  of  writing  is  the  only  objection,  and  the  defendant 
by  his  pleading  does  not  raise  the  bar  of  the  statute,  and  admits,  either 
expressly  or  impliedly  (Order  19,  rr.  15,  17,  20),  the  contract  alleged  by 
the  plaintiff,  the  ease  is  taken  entirely  out  of  the  mischief  which  the 
statute  has  in  view :  there  is  no  room  for  fraud  or  perjury ;  and  the 
Court  will  accordingly  direct  specific  performance  {Lacon  v.  Martins, 
1743,  3  Atk,  at  p.  3;  26  E.  R.  804;  A.-G.  v.  Day,  1748-49,  1  Ves.,  at 
p.  221 ;  27  E.  R  994). 

(iv.)  Sale  hy  the  Court. — Where  property  is  sold  under  the  direction 
of  the  Court,  the  judicial  nature  of  the  proceedings,  in  which  the  fact  of 
the  sale,  the  particulars  of  the  property  sold,  the  price,  and  the  name 
of  the  purchaser  are  formally  certified  by  the  Master,  takes  the  case 
out  of  the  mischief  to  prevent  which  the  statute  was  enacted ;  and  the 
Court  regards  such  cases  as  excepted  from  the  operation  of  the  statute 
{A.-G.  V.  Day,  1748-49,  1  Ves.,  at  p.  221;  27  E.  R.  994;  Blagden  v. 
Bradhear,  1806,  12  Ves.  Jun.,  at  p.  472 ;  33  E.  R.  178 ;  8  R.  R.  354). 
See  further.  Sale  by  the  Couet. 

CONTKACTS   RELATING  TO   PERSONAL   PROPERTY   OR  ACTS. 

The  number  and  variety  of  imaginable  contracts  relating  to  personal 
property,  or  personal  acts,  are  almost  infinite.  All  that  can  be  at- 
tempted here  will  be  to  advert  briefly  to  the  principal  classes  of  con- 
tracts falling  within  this  category  (as  well  as,  as  regards  some  few  of 
them,  within  the  category  of  contracts  relating  to  land),  with  respect  to 
which  the  granting  or  withholding  of  relief  by  way  of  specific  perform- 
ance has  been  judicially  considered. 


SPECIFIC  PERFOEMANCE  555 

Annuity. — Contracts  to  purchase  or  to  sell  life  annuities  may  be 
specifically  enforced  {Withy  v.  Cottle,  1823,  Turn.  &  R.  78 ;  37  E.  R. 
1024 ;  23  R.  R.  187 ;  Fritchard  v.  Ovey,  1820, 1  Jac.  &  W.  396 ;  37  E.  R. 
426 ;  21  R.  R.  195). 

Arbitration  and  Award. — An  action  will  not  lie  for  specific  perform- 
ance of  a  contract  to  refer  to  arbitration  (Street  v.  Bighy,  1802,  6  Ves. 
Jun.,  at  p.  318),  but  will  lie  for  specific  performance  of  an  award  {Wood 
V.  Griffith,  1818,  1  Swans.,  at  p.  54 ;  36  E.  R.  295 ;  18  R.  R.  18 ;  see,  too. 
Nickels  v.  Hancock,  1855,  7  De  G.,  M.  &  G.  300;  44  E.  R.  117). 

Business. — See  Goodwill,  infra. 

Charter- Farty. — The  Court  cannot  affirmatively  enforce  the  contract 
contained  in  a  charter-party,  but  can  restrain,  by  injunction,  the  em- 
ployment of  a  ship  in  a  manner  inconsistent  with  the  rights  given  by 
that  contract  {De  Mattos  v.  Gibson,  1859,  4  De  G.  &  J.  Ch.,  at  p.  299 ; 
45E.  R.  116;  Le  Blanche  v.  Granger,  1866,  35  Beav.  187;  55  E.  R. 
866). 

Chattels. — It  is  only  in  cases  where  chattels  are  unique,  or  (not 
merely  convenient  for  the  purposes  of,  but)  of  jteculjar  value  to_the 


.  plain tiffr  that  the  Court  will  specifically  enforce  contracts  for  the  sale 
and  delivery  of  them  (compare  Falcke  v.  Gray,  1859,  4  Drew.  651,  and 
Fothergill  v.  Bowland,  1873,  L.  R.  17  Eq.,  at  pp.  139,  140).  These  cases 
of  specific  performance  may  be  compared  (i.)  with  those  in  which, 
independently  of  any  question  of  contract,  the  Court  of  Chancery 
exercised  jurisdiction  to  enforce  the  delivery  up  in  specie  of  heirlooms 
(Fu^ey  v.  Fv^ey,  1684,  1  Vern.  273),  or  curiosities  {Duke  of  Somerset  v. 
Cookson,  1735,  3  P.  Wms.  389);  and  (ii.)  with  the  remedy  of  execution 
for  delivery  of  a  chattel  (Order  48,  r.  2). 

Compromise. — An  agreement  for  a  compromise  may  be  specifically 

enforced  {Attwood  v. ,  1826,  1  Russ.  353),  and  if  made  in  an  action, 

by  means  of  a  summons  taken  out  in  that  action  {Eden  v.  Naish,  1878, 
L.  R.  7  Ch.  781). 

Debts. — An  action  will  lie  for  specific  performance  of  a  contract  to 
purchase  a  debt  (^n^r^^  v.  Bell,  1818,  5  Price  Ex.  325 ;  19  R.  R.  638). 

Bxpectan^ies — Contracts  for  value  dealing  with  expectancies  have,  in 
numerous  reported  cases,  been  upheld  by  Courts  of  equity,  and  directed 
to  be  specifically  performed  (see  Lyde  v.  Mynn,  1833,  1  Myl.  &  K.  683 ; 

36  R.  R.  415,  and  cases  there  referred  to;  and  see  In  re  Ellenborou^h, 
[1903]  1  Ch.,  at  p.  700). 

Family  Arrangements. — These  are  regarded  with  favour  by  the  Court, 
and,  whatever  be  the  nature  of  the  property  to  which  they  relate,  they 
will,  if  fair  and  reasonable,  be  specifically  enforced  {Stapilton  v.  Stapilton, 
1739,  1  Atk.  2 ;  26  E.  R.  1 ;  Westby  v.  Westby,  1842,  2  Dr.  &  War.,  at 
p.  525 ;   Williams  v.  Williams,  1867,  L.  R.  2  Ch.  294). 

Goodunll. — A  contract  for  sale  of  business  premises  with  the  goodwills  / 
annexed  to  them  is  capable  of  being  specifically  enforced  {Darbey  vj  | 
Whitaker,  1857,  4  Drew.,  at  p.  140) ;  but  not  a  contract  to  sell  a  good 
will  alone  {ibid.,  at  p.  139 ;  Baxter  v.  Conolly,  1820,  1  Jac.  &  W.  576 

37  E.  R.  487 ;  21  R.  R.  237),  for  it  has  no  independent  existence,  cannot 
subsist  by  itself,  and  must  be  attached  to  a  business  {Inland  Bevenui 
Commissioners  v.  Muller  &  Co.'s  Margarine,  [1901]  A.  C,  at  p.  224);  nor, 
it  is  conceived,  a  contract  to  sell  a  business,  or  a  medical  practice,  apart 
from  the  business  premises  or  other  tangible  property  {Bozon  v.  Farlow, 
1816,  1  Mer.  459 ;  May  v.  Thomson,  1882,  20  Ch.  D.  706). 

Indemnity. — ^A  contract  simply  to  indemnify  is  not  enforceable ;  but 


/ 


556  SPECIFIC  PERFORMANCE 

if  the  imdemnifying  party  also  agrees  to  do  some  act,  the  doing  of  which 
would  operate  as  an  indemnity,  performance  of  the  act  may  be  compelled 
{L.  &  S.-W.  Ely.  Co.  V.  Humphrey,  1858,  6  W.  R.,  at  p.  785). 

Leaseholds. — Leasehold    property   is    regarded    by  English   law   as 

personalty ;  but  such  property  is  an  interest  in  land,  and  accordingly 

contracts  relating  to  leaseholds  fall  within  the  category  of  contracts 

relating  to  land,  which  contracts  have  already  been  discussed  (pp.  546 

/  et  seq.). 

Loans. — Specific   performance  of   a  contract   to   lend   and   borrow 

'  money  is  luilLgranted,  at  the  suit  either  of  the  proposed  lender  or  of 

j  the   proposed   borrower,  whether  the  loan   is   to    be   on    security  or 

;  without  security  (South  African  Territories  y.  Wallington,  [1897]  1  Q.  B., 

at  p.  696;    [1898]  A.  C.  309;    West  v.    Williams,  [1899]  1  Ch.,  at 

p.  146) ;  but  where  money  has  been  actually  advanced,  the  Court  will 

enforce  specific  performance  of  a  contract  to  execute  a  mortgage  for 

securing  the  repayment  of  the  advance  {Hermann  v.  Hodges,  1873,  L.  R. 

16  Eq.  18). 

Marriage  Articles. — Performance  of  a  contract  on  marriage  for  the 
settlement  of  personal,  no  less  than  of  real,  property  may  be  enforced  by 
the  Court  (Jeston  v.  Key,  1871,  L.  R.  6  Ch.  610 ;  and  see  Harvey  v.  Ashley, 
1748, 3  Atk.,  at  p.  611 ;  26  E.  R.  1151.  Distinguish  In  re  Fickus,  [1899] 
1  Ch.  331). 

Parliament. — Cases  may,  perhaps,  arise  in  which  a  contract  not  to 
apply  for  a  private  Act  of  Parliament  will  be  enforced  by  means  of  an 
injunction  {Steele  v.  North  Metropolitan  Rly.  Co.,  1867,  L.  R.  2  Ch.,  at 
p.  238w.) ;  but,  as  a  rule,  contracts  not  to  apply  to  Parliament  will  not 
be  enforced  by  the  Court  (S.  C. ;  and  Lancaster,  etc.,  Ely.  Co.  v.  North- 
western Rly.  Co.,  1856,  2  Kay  &  J.  293 ;  69  E.  R.  792). 
j  Partnership. — As  a  general  rule,  the  Court  will  not  adjudge  specific 
performance  of  a  contract  to  form  and  carry  on  a  partnership.  There 
may  be  exceptions,  but  very  limited  exceptions,  from  that  rule,  as,  for 
instance,  where,  after  part  performance  of  such  a  contract,  the  Court  has 
decreed  the  execution  of  a  proper  deed  of  partnership  {Scott  v.  Eayment, 
1868,  L.  R.  7  Eq.,  at  p.  115;  England  v.  Curling,  1844,  8  Beav.  129; 
50  E.  R.  51 ;  68  R.  R.  39).  But  a  contract  for  the  sale  of  a  share  in 
a  partnership  business  may  be  specifically  enforced  {Dodson  v.  Downey, 
[1901]  2  Ch.  620);  and,  as  to  the  right  of  a  person  nominated  as  a 
partner  pursuant  to  a  power  in  the  partnership  articles,  see  Byrne 
V.  Eeid,  [1902]  2  Ch.  735,  743.  Note,  too,  that  damages  may  be  obtained 
for  breach  of  a  contract  for  the  purchase  of  an  option  to  enter  into 
partnership  {Lisle  v.  Eeeve,  [1902]  1  Ch.  53,  70,  72;  affirmed,  [1902] 
A.  C.  461). 

Patents. — A  contract  for  the  sale  of  a  patent  was  specifically  enforced 
in  Cogent  v.  Gibson,  1864,  33  Beav.  557 ;  55  E.  R.  485 ;  and  similar 
relief  may  be  obtained  on  a  contract  by  the  vendor  of  a  patent  to  assign 
to  the  purchaser  patent  rights  which  the  former  may  acquire  in  the 
future  {Printing,  etc.,  Co.  v.  Sampson,  1875,  L.  R.  19  Eq.  462).  In  Bruner 
V.  Moore,  [1904]  1  Ch.  305,  the  plaintiff  had  exercised  an  option  to 
purchase  certain  patent  rights,  and  was  held  entitled  to  specific 
performance. 

Personal  Acts. — A  party  to  a  contract  may,  in  certain  cases,  be 
ordered  to  perform  a  stipulation  for  the  execution  by  him  of  a  bond 
or  other  deed  {e.g.  Avery  v.  Langford,  1854,  Kay,  663 ;  69  E.  R.  281 ; 
Granville  v.  Belts,  1848,  18  L.  J.  Ch.  32 ;  cp.  the  old  cases  referred  to  in 


SPECIFIC  PEEFORMANCE  557 

Stewart  v.  Kennedy,  1890, 15  App.  Cas.,  at  p.  104) ;  but  such  contracts  as 
a  contract  by  an  actor  to  act  at  a  particular  theatre  (Kemble  v.  Kean, 
1829,  6  Sim.  333 ;  58  E.  K.  619 ;  38  R.  R.  125),  or  a  contract  to  supply 
publishers  with  drawings  of  maps  for  engraving  and  publication,  cannot 
be  specifically  enforced  (Baldvnn  v.  Society  for  Diffusing  Useful  Knoivledge, 
1838,  9  Sim.  393 ;  59  E.  R.  409 ;  47  R.  R.  274). 

Personal  Services. — As  has  been  already  noticed  (supra,  p.  545),  the 
Court  does  not  grant  specific  performance  of  contracts  for  personal 
service,  such,  for  instance,  as  contracts  of  hiring  and  service  {Bighy 
V.  Connol,  1880,  14  Ch.  D.,  at  p.  487),  apprenticeship  {De  Francesco 
V.  Barnum,  1890, 45  Ch.  D.,  at  p.  437),  or  agency  {Chinnock  v.  Sainsbury, 
1860,  30  L.  J.  Ch.  409). 

Beversions. — Contracts  for  the  sale  and  purchase  of  reversionary 
interests,  if  made — to  use  the  words  of  the  Sales  of  Reversions  Act, 
1867,  31  Vict.  c.  4,  s.  1 — "  bond  fide  and  without  fraud  or  unfair  dealing," 
are,  it  is  conceived,  specifically  enforceable  (see  -per  Lindley,  M.R.,  in 
Levy  V.  Stogdon,  [1899]  1  Ch.,  at  p.  10),  the  former  rule,  that  a  purchaser 
of  a  reversion  must  prove  that  he  gave  a  full  price  {Hincksman  v.  Smith, 
1827,  3  Russ.  433),  having  been  virtually  abrogated  by  the  last-men- 
tioned Act.  As  to  the  jurisdiction  of  Courts  of  equity  to  protect 
reversioners,  and  to  relieve  them  and  others  against  catching  bargains, 
see  O'Borlce  v.  Bolingbroke,  1877,  2  App.  Cas.,  at  p.  833 ;  Fry  v.  Lane, 
1888,  11  Ch.  D.,  at  p.  322;  Bae  v.  Joyce,  1892,  29  L.  R.  Ir.  500). 

Separation. — A  valid  contract  for  the  present  separation  of  husband 
and  wife  may  be  enforced  specifically  by  directing  the  execution  of  a 
proper  deed  for  that  purpose  ( Wilson  v.  Wilson,  1848,  1  H.  L.  C.  538 ; 
9  E.  R.  870;  73  R.  R.  158);  but  a  contract  providing  for  their  pro- 
spective separation  is  unenforceable  (Westmeath  v.  Salisbury,  1831,  5  Bli. 
N.  S.,  at  p.  367 ;  5  E.  R.  359 ;  35  R.  R.  54).  Husband  and  wife,  when 
engaged  in  matrimonial  litigation  (as  to  this  limitation  of  the  pro- 
position, see  and  compare  Gahill  v.  Gahill,  1883,  8  App.  Cas.,  at  pp.  429- 
432,  and  M'Gregor  v.  M'Gregm\  1888,  21  Q.  B.  D.,  at  p.  430),  can  validly 
contract  with  one  another  for  a  present  separation  (Besant  v.  Wood,  1879, 
12  Ch.  D.  605),  provided  there  is  some  sufficient  consideration  for  the 
contract  (  Wilson  v.  Wilson,  ubi  supra,  at  p.  574 ;  Gibbs  v.  Harding,  1870, 
L.  R.  3  Ch.,  at  p.  339).  Formerly  such  a  contract  was  unenforceable  if 
it  contained  a  provision  for  the  father  giving  up  the  custody  of  his 
infant  children  to  his  wife  (Hope  v.  Hope,  1858,  8  De  G.,  M.  &  G.  Ch.,  at 
p.  745 ;  44  E.  R.  577) ;  but  the  effect  of  the  Custody  of  Infants  Act, 
1873,  36  &  37  Vict.  c.  12,  s.  2,  has  been  to  remove  this  objection  to  the 
specific  performance  of  a  contract  for  separation  (Hart  v.  Hart,  1881, 
18  Ch.  D.,  at  pp.  681,  682). 

Shares  and  Stock, — Although  as  has  already  been  noticed  (supra, 
p.  544),  the  Court  will  not  specifically  enforce  a  contract  to  sell  Govern- 
ment stock  (Nutbroivn  v.  Thornton,  1804, 18  Ves.  Jun.,  at  p.  161 ;  34  E.  R. 
1062),  it  will  generally  enforce,  at  the  instance  either  of  the  vendor 
or  of  the  purchaser,  contracts,  even  by  parol,  for  the  sale  of  shares  in 
companies  (Duncuft  v.  Albrecht,  1841,  12  Sim.  189),  provided  that 
performance  is  not  impossible  (Ferguson  v.  Wilson,  1866,  L.  R.  2  Ch.  77), 
and  that  the  right  to  it  has  not  been  lost  or  abrogated  by  delay  or  other- 
wise (NicoVs  Gase,  1885,  29  Ch.  D.,  at  pp.  428,  445).  Such  enforcement 
may  be  had  though  the  vendor  be  only  equitably  entitled  to  the  shares 
(Paine  v.  Hutchinson,  1868,  L.  R.  3  Ch.,  at  p.  390),  or  though,  the  contract 
being  one  governed  by  Stock  Exchange  rules  (as  to  which,  see  Nickalls 


558  SPECIFIC  PEEFOEMANCE 

V.  Merry,  1875,  L.  E.  7  H.  L.,  at  pp.  539-541),  the  purchaser  sued  be  not 
the  original  purchaser,  but  the  nominee  of  the  purchasing  jobber  or 
broker  {Evans  v.  Wood,  1867,  L.  E.  5  Eq.  9).  Where,  however,  the 
shares  can  readily  be  obtained  in  the  market,  the  Court  may  decline 
to  grant  specific  performance  at  the  suit  of  the  purchaser,  on  the 
principle  on  which  it  refuses  that  relief  to  a  purchaser  of  Government 
stock  {In  re  Schwahachcr,  1908,  98  L.  T.,  at  p.  129).  As  to  whether,  anc' 
in  what  cases,  if  any,  performance  of  a  contract  between  vendor  and 
purchaser  of  shares  in  a  company  can  be  enforced  by  means  of  an 
application  under  sec.  35  of  the  Companies  Act,  1862,  for  rectification 
of  the  company's  register  of  shareholders,  see  Wai^d  and  Henry's  Case, 
1867,  L.  E.  2  Ch.  431 ;  JSx  parte  Sargent,  1873,  L.  E.  17  Eq.,  at  p.  276 ; 
Hx  parte  Shaw,  1877,  2  Q.  B.  D.  463,  477  et  seq. 

Ships. — By  sec.  57  of  the  Merchant  Shipping  Act,  1894, 57  &  58  Vict, 
c.  60  (consider  Black  v.  Williams,  [1895]  1  Ch.  408),  it  is  enacted  that, 
without  prejudice  to  the  provisions  of  that  Act  relating  to  the  exclusion 
of  unqualified  persons  from  the  ownership  of  British  ships,  interests 
arising  under  contract  may  be  enforced  by  or  against  owners  or  mort- 
gagees of  ships  in  respect  of  their  interest  therein  in  the  same  manner 
as  in  respect  of  any  other  personal  property.  Accordingly,  the  Court 
has,  it  is  conceived,  jurisdiction  to  adjudge  specific  performance  of 
contracts  for  sale  of  British  ships  {Batthyany  v.  Bouch,  1881,  50  L.  J. 
Q.  B.  421),  as  well  as,  in  certain  cases  {e.g.  Hart  v.  Bering,  1873, 
8  Ch.,  at  p.  866),  of  non-British  ships.  In  Claringbould  v,  Curtis,  1852, 
21  L.  J.  Ch.  541,  specific  performance  of  a  contract  to  sell  a  barge  was 
decreed. 

Trade. — See  Goodwill,  supra,  p.  555. 

Compensation. 

The  principle  of  compensation  in  connection  with  specific  performance 
is  a  creation  of  English  Courts  of  equity,  and  a  corollary  to  the  pro- 
positions underlying  their  peculiar  jurisdiction  as  to  enforcing  contracts 
specifically.  It  is  unknown  to  the  law  of  Scotland  {Stewart  v.  Kennedy, 
1890, 15  App.  Cas.,  at  p.  102).  It  resembles  the  equitable  doctrine  of  part 
performance  in  this,  that  very  nearly  all  the  reported  cases  in  which  it 
has  been  applied  were  cases  of  contracts  relating  to  land,  or  some  interest 
in  land.  Its  assistance  may.be  invoked  either  by  the  vendor  or  by.tha. 
purchaser ;  but  it  goes  further  in  favour  of  the  latter  than  of  the  former. 
'For,_briefiy  stated,  it  amounts  to  this,  viz. — (i.)  Where  the  vendor  is  the 
party  seeking  to  enforce  the  contract,  and  he  can  perform  his  part  of  it 
substantially,  though  not  according  to  the  strict  letter  (so  that  he  would 
be  unable  to  maintain  an  action  at  common  law  upon  it),  then,  generally, 
the  contract,  if  in  other  respects  unobjectionable,  will  be  specifically 
enforced  by  the  Court,  the  vendor  compensating  the  purchaser  for  any 
deficiency  in  value  of  what  the  vendor  can  actually  convey  as  compared 
with  what  he  contracted  to  sell ;  but  (ii.)  where  the  purchaser  is  the 
party  seeking  to  enforce  the  contract,  he  is,  generally,  entitled  to  have  a 
conveyance  from  the  vendor  of  all  that  he  can  convey,  even  though  that 
be  substantially  different  from  the  expressed  subject-matter  of  the 
contract  (so  that  the  vendor  could  not  enforce  performance),  and,  in 
addition,  to  be  allowed  compensation,  commonly  by  way  of  abatement 
from  the  purchase-money,  for  the  difference. 

The  two  aspects  of  the  principle,  in  its  application  to  the  cases  of 


SPECIFIC  PEEFORMANCE  559 

(i.)  a  vendor  plaintiff,  and  (ii.)  a  purchaser  plaintiff,  have  been  clearly 
pointed  out  by  Lord  Erskine  and  Lord  Eldon.  As  to  (i.).  Lord  Erskine 
said,  in  Halsey  v.  Grant,  1806,  13  Ves.  Jun.,  at  pp.  77,  79 ;  33  E.  R.  223, 
224;  9  R.  K  143,  "Equity  does  not  permit  the  forms  of  law  to  be 
made  instruments  of  injustice;  and  will  interfere  against  parties 
attempting  to  avail  themselves  of  the  rigid  rule  of  law  for  uncon- 
scientious purposes.  "Where,  therefore,  advantage  is  taken  of  a  circum- 
stance that  does  not  admit  of  a  strict  performance  of  the  contract,  if  the 
failure  is  not  substantial,  equity  will  interfere.  If,  for  instance,  the 
contract  is  for  a  term  of  99  years  in  a  farm,  and  it  appears  that  the 
vendor  has  only  98  or  97  years,  he  must  be  non-suited  in  an  action : 
but  equity  will  not  so  deal  with  him ;  and  if  the  other  party  can  have 
the  substantial  benefit  of  his  contract,  that  slight  difference  being  of  no 
importance  to  him,  equity  will  interfere.  Thus  was  introduced  the 
principle  of  compensation  .  .  .  where  one  party  would  be  foiled  at  law, 
but  the  other  may  have  the  reasonable,  substantial  effect  of  his  con- 
tract, compensation  shall  be  admitted;  not  where  the  effect  will  be 
to  put  upon  him  something  constitutionally  different  from  that  for  which 
he  contracted."  And  again,  a  very  little  later,  in  Alley  v.  Deschamps, 
1806,  13  Ves.  Jun.,  at  pp.  228,  229;  33  E.  R.  280,  the  same  Lord 
Chancellor  said :  "  This  relief  [specific  performance]  .  .  .  was  followed 
by  another  class  of  cases,  equally  clear,  that  where  a  party  was  not  able 
to  perform  his  engagement  according  to  the  strict  letter,  if  the  failure 
was  not  substantial,  the  other  should  not  be  permitted  to  take  advantage 
of  the  strict  form." 

As  to  (ii.),  Lord  Eldon  said,  in  Mortlock  v.  Buller,  1804, 10  Ves.  Jun., 
at  p.  315 ;  32  E.  R.  866 ;  7  R.  R.  417 :  I  also  agree,  if  a  man,  having 
partial  interests  in  an  estate,  chooses  to  enter  into  a  contract,  representing 
it,  and  agreeing  to  sell  it,  as  his  own,  it  is  not  competent  to  him  after- 
wards to  say,  though  he  has  valuable  interests  he  has  not  the  entirety ; 
and  therefore  the  purchaser  shall  not  have  the  benefit  of  his  contract. 
For  the  purpose  of  this  jurisdiction,  the  person  contracting  under  suchi 
circumstances  is  bound  by  the  assertion  in  his  contract;  and  if  the/ 
vendee  chooses  to  take  as  much  as  he  can  have,  he  has  a  right  to  that  J 
and  to  an  abatement ;  and  the  Court  will  not  hear  the  objection  by  the 
vendor,  that  the  purchaser  cannot  have  the  whole."  (See,  too,  Rudd  v. 
Lascelles,  [1900]  1  Ch.  815,  818). 

The  principle  under  discussion  is  open  to  the  criticism  that  to  give 
to  a  purchaser  the  remedy  of  specific  performance  of  part  of  a  contract, 
and  also  compensation  for  a  portion  of  the  subject-matter  of  the  contract 
which  the  vendor  is  unable  to  convey,  is  virtually  to  make  a  new  bargain 
for  the  parties  which  they  have  not  made  for  themselves  (see  per  Lord 
Watson  in  Stewart  v.  Kennedy,  1890,  15  App.  Cas.,  at  p.  102 ;  also  per 
Farwell,  J.,  in  Budd  v.  Lascelles,  [1900]  1  Ch.  815,  at  p.  819).  The  danger 
of  doing  this  was  evidently  felt  by  Lord  Erskine  (see  Halsey  v.  Grant, 
1806,  13  Ves.  Jun.,  at  p.  76  ;  33  E.  R.  223 ;  9  R.  R.  143) ;  but  he  never- 
theless was  enthusiastic  enough  about  the  principle  of  compensation  to 
say  of  it:  "This  is  the  perfection  of  our  jurisdiction.  If  the  rigid 
construction  of  the  law  were  relaxed,  there  would  be  no  safety ;  but  the 
system  is  rendered  perfect  by  this  healing  power  of  equity  "  (S.  C,  at 
p.  77). 

The  following  cases,  selected  out  of  the  many  which  occur  in  the 
Reports,  may  serve  to  illustrate  the  application  and  limits  of  the 
principle : — 

/ 


560  SPECIFIC  PERFOEMANCE 

(i.)  Vendor  Plaintiff— 

(a)  Specific  performance  with  compensation  granted  (Calcraft  v. 
Boehuck,  1790, 1  Ves.  Jim.  221 ;  30  E.  R.  311—186  acres  sold  as  freehold, 
two  acres  being  in  fact  held  only  from  year  to  year). 

(h)  Specific  performance  with  compensation  refused  {Binhs  v.  Lord 
Bohehy,  1818, 2  Swans.,  at  p.  222 ;  36  E.  E.  600 ;  19  E.  E.  68— estate  sold 
as  tithe  free,  but  in  fact  subject  to  tithe). 

(ii.)  Purchaser  Plaintiff —  • 

(c)  Specific  performance  with  compensation  granted  {Hooper  v.  Smart, 
1874,  L.  E.  18  Eq.  683 — contract  to  sell  the  entirety  of  freeholds,  the 
vendors  being  in  fact  entitled  to  a  moiety  only). 

{d)  Specific  performance  with  compensation  refused  {Edwards  Wood 
V.  MarjonUnks,  1860,  7  H.  L.  C.  806 ;  11  E.  E.  221— contract  to  sell 
advowson,  and  discovery  by  purchaser,  after  acceptance  of  title,  that  the 
living  was  subject  to  a  Queen  Anne's  Bounty  mortgage). 

Other  cases  will  be  found  collected  in  Seton,  6th  ed.,  at  pp.  2261- 
2263 ;  see,  too,  Cmnor  v.  Potts,  [1897]  1  I.  E.  534,  539. 

It  is,  however,  to  be  observed  that  the  principle  of  compensation  will 
not  be  applied  at  the  instance  of  a  plaintiff  who  does  not  come  into 
Court  with  clean  hands,  as,  for  instance,  where  he  has  been  guilty  of 
misrepresentation  (see  per  Plumer,  M.E.,  in  Clermont  v.  Tasbiirgh,  1819, 
1  Jac.  &  W.,  at  p.  120,  121 ;  37  E.  E.  321 ;  20  E.  E.  243).  Nor  will  it^f 
generally  be  applied  where  the  purchaser  at  the  time  of  entering  into ' 
the  contract,  was  aware,  or  had  constructive  notice  {In  re  Childe  and 
Hodgson's  Contract,  1906,  54  W.  E.  234),  of  the  defect,  whether  arising 
from  the  vendor's  inability  to  convey  the  whole  of  the  estate  the  subject 
of  the  contract  {Castle  v.  Wilkinson,  1870,  L.  E.  5  Ch.  534),  or  from  a 
patent  misdescription  {Dyer  v.  Hargrave,  1805,  10  Ves.  Jun.  505 ;  32 
E.  E.  941 ;  8  E.  E.  36) — though  secus  in  the  case  of  a  latent  defect  {ibid., 
at  p.  509) ;  nor  where  the  purchaser  has  waived  the  right  to  compensation, 
either  expressly,  or  impliedly  as  by  taking  possession  {Burnell  v.  Brown, 
1820,  1  Jac.  &  W.  168 ;  37  E.  E.  339);  nor  where  the  proper  amount  of 
compensation  is  not  capable  of  being  ascertained  {Lord  Brooke  v.  Rounth- 
waite,  1846,  5  Hare,  at  pp.  303-305;  67  E.  E.  928;  71  E.  E.  115;  Budd 
v.  Lascelles,  [1900]  1  Ch.  815,  where  compensation  for  undisclosed 
restrictive  covenants  was  held  to  be  incapable  of  assessment) ;  nor  where 
the  enforcement  of  the  contract  against  the  vendor  would  be  prejudicial 
to  third  persons  interested  in  the  property  {Thomas  v.  Bering,  1837, 
1  Keen,  at  p.  747 ;  48  E.  E.  495 ;  44  E.  E.  158) ;  nor  where,  the  contract 
saying  nothing  about  compensation,  the  purchaser  or  lessee  has  taken 
his  conveyance  or  lease  {Clayton  v.  Leech,  1889,  41  Ch.  D.  103). 

The  case  of  indemnity  against  a  defect  of  title  differs  in  some 
respects  from  compensation.  The  Court  will  not,  generally,  compel 
a  purchaser  to  take,  or  a  vendor  to  give,  an  indemnity  (see  and  com- 
pare Halsey  v.  Grant,  1806,  13  Ves.  Jun.,  at  p.  79;  33  E.  E.  224 
9  E.  E.  143;  HorniUow  v.  Shirley,  1806,  13  Ves.  81;  33  E.  E.  225 
Balmanno  v.  Lumley,  1813,  1  Ves.  &  Bea.,  at  p.  225  ;  35  E.  E.  88 
12  E.  E.  215 ;  and  In  re  Weston  and  Thomas  Contract,  [1907]  1  Ch.  244, 
where  it  was  held  that  the  purchaser  was  not  bound  to  accept  an  in- 
demnity even  for  a  trifling  amount  of  contingent  succession  duty). 

Thus  far  the  general  principles  of  the  Court,  applicable  in  cases 
where  there  is  no  special  contract  relative  to  compensation,  have  been 
considered  and  illustrated.  Where  there  is  an  express  stipulation  on 
the  subject — and  not  only  in   conditions  of  sale  on  sales  by  public 


SPECIFIC  PEEFOEMANCE  561 

auction,  but  also  in  formal  agreements  for  sale  by  private  contract, 
there  is  usually  a  clause  providing  for  or  negativing  the  allowance  of 
compensation — the  special  contract  between  the  parties  supersedes  or 
supplements  the  general  rule,  and  the  Court  is  remitted  to  the  duty  of 
construing  the  contract  according  to  the  ordinary  rules  of  construction 
(see  'per  Lord  Campbell  in  Cordingly  v.  Cheeseborough,  1862,  4  De  G., 
F.  &  J.,  at  p.  385  ;  45  E.  E.  1232). 

Accordingly,  a  vendor  may  be  entitled  to  defeat  the  purchaser's 
claim  under  a  stipulation  for  compensation,  by  rescinding  the  contract 
pursuant  to  another  stipulation  empowering  him  so  to  do  {Mawson  v. 
Fletcher,  1870,  L.  E.  6  Ch.  91);  a  purchaser  may,  where  there  has  been 
material  misrepresentation  in  the  particulars  of  sale,  successfully  resist 
performance,  notwithstanding  a  condition,  in  terms  binding  him  to  take 
compensation  for  any  mistakes  or  errors  in  the  particulars,  but  con- 
strued by  the  Court  to  apply  only  to  accidental  slips  {Dimmock  v. 
Hallett,  1866,  L.  E.  2  Ch.  21) ;  a  vendor  defendant  may,  notwithstand- 
ing a  stipulation  providing  for  his  making  compensation  for  errors  of 
any  kind  in  the  description  of  the  property,  be  relieved  from  compen- 
sating the  purchaser  for  even  a  large  deficiency  in  the  stated  quantity 
of  the  land  sold,  where  there  is  also  a  stipulation  expressly  negativing 
compensation  for  error  in  the  admeasurements  {Gorditigly  v.  Cheeseborough, 
1862,  4  De  G.,  F.  &  J.  379  ;  45  E.  E.  1230) ;  a  purchaser  may,  by  force  of  a 
condition  of  sale  that,  if  any  error  in  the  particulars  be  discovered,  com- 
pensation shall  be  allowed  by  the  vendor,  obtain  compensation  for  an. 
error  not  discovered  until  after  the  execution  of  the  conveyance  {Palmer 
V.  Johnson,  1884,  13  Q.  B.  D.  351) ;  and  a  purchaser  may  obtain  com- 
pensation under  one  condition,  notwithstanding  an  attempt  by  the 
vendors  to  rescind  the  contract  under  another  {In  re  Jackson  and 
Baden's  Contract,  [1906]  1  Ch.  412). 

J  Note,  however,  that  a  condition  of  sale  providing  for  compensation 
"  if  any  error  or  misstatement  shall  appear  to  have  been  made  in  the 
particulars  of  sale  or  these  conditions,"  does  not  apply  to  a  defect  in 
titlej.and  that,  apart  from  express  condition,~^oinpensation  cannot  be 
recovered  after  conveyance  in  respect  of  such  a  defect  {Dehenham  v. 
Sawhridge,  [1901]  2  Ch.  98,  108). 

Further,  notwithstanding  a  condition  that  any  error  in  the  particulars 
shall  form  the  subject  of  compensation,  a  statement  by  the  auctioneer 
at  the  time  of  sale,  clearly  correcting  a  material  misdescription  in  the 
particulars,  will  preclude  the  purchaser  from  obtaining  compensation 
for  that  misdescription,  even  though  he  did  not  hear  the  statement 
{In  re  Hare  and  O'Mores  Contract,  [1907]  1  Ch.  93). 

Damages. 

When  the  equitable  jurisdiction  in  relation  to  specific  performance 
had  become  established,  a  party  to  a  contract  falling  within  the  scope  of 
that  jurisdiction  had  two  remedies  open  to  him,  in  the  event  of  and 
against  the  other  party  refusing  or  omitting  to  perform  his  part  of  the 
contract ;  he  might  either  institute  a  suit  in  equity  for  specific  perform- 
ance, or  bring  an  action  at  common  law  for  damages  for  the  breach. 
And  that  being  so,  and  partly,  perhaps,  because  it  was  content  with  its 
victory  over  the  opposition  of  the  Courts  of  law  to  its  peculiar  jurisdic- 
tion, the  Court  of  Chancery  appears  to  have  been  for  a  long  time  indis- 
posed, generally,  to  give  relief  by  way  of  damages  for  breach  of  contract. 
VOL.  XIII.  36 

/ 


562  SPECIFIC  PERFORMANCE 

"  My  opinion  is,"  said  Lord  Eldon,  in  Todd  v.  Gee,  1810,  17  Yes.  Jun., 
at  p.  278 ;  34  E.  R.  107 ;  11  R.  R.  76,  "  that  this  Court  ought  not,  except 
under  very  particular  circumstances,  as  there  may  be  upon  a  bill  for  the 
specific  performance  of  a  contract  to  direct  an  issue,  or  a  reference  to  a 
Master,  to  ascertain  the  damages.  That  is  purely  at  law.  It  has  no 
resemblance  to  compensation." 

Experience,  however,  showed  that  cases  from  time  to  time  occurred 
in  which,  though  the  contract  sued  upon  was  one  of  which  specific  per- 
formance might,  in  accordance  with  the  principles  and  rules  of  the  Court 
of  Chancery,  be  granted,  justice  would  best  be  done  by  giving  damages  ; 
and  it  was  obviously  expedient  that,  in  such  a  case,  that  Court  should 
not  send  its  suitor  away  to  seek  relief  in  a  Court  of  law,  but  should 
itself  dispose  of  the  whole  matter.     Accordingly,  in  the  year  1858  an 


f[j    Act,  usually  called  Lord  Cairns's  Act,  21_.&  22  Vict.  c.  27,  was  passed,  by 
^    '  the  second  section  ot'  which  it  was  enacted  as  follows : — "  In  all  cases  ir 
which  the  Court  of  Chancery  has  jurisdiction  to  entertain  an  applicatioi 
for  an  injunction  against  the  breach  of  any  covenant,  contract,  or  agree 


-yl  f  which  the  Court  of  Chancery  has  jurisdiction  to  entertain  an  application 
^  ^  j  for  an  injunction  against  the  breach  of  any  covenant,  contract,  or  agree- 
-^  ;  ment,  or  against  the  commission  or  continuance  of  any  wrongful  act,  or 

for  the  specific  performance  of  any  covenant,  contract,  or  agreement,  it 
shall  be  lawful  for  the  same  Court,  if  it  shall  think  fit,  to  award  damages 
to  the  party  injured,  either  in  addition  to  or  in  substitution  for  such 
injunction  or  specific  performance ;  and  such  damages  may  be  assessed 
in  such  manner  as  the  Court  shall  direct."  It  is  to  be  noticed  that  thef 
language  of  this  section  made  it  a  condition  precedent  to  the  exercise  ofi 
the  discretionary  power  of  awarding  damages  thereby  conferred,  that  the! 
jcase  should  be  one  in  which  an  injunction  or  specific  performance  might! 
be_graiited.  Therefore,  where  at  the  time  of  the  commencement  of  the  ^ 
litigation,  relief  by  way  of  specific  performance  was  impossible — as 
where,  for  instance,  a  plaintiff  sought  to  enforce  the  allotment  to  him 
of  some  shares,  and  all  the  shares  had  been  allotted  to  other  persons 
before  the  filing  of  the  bill  {Ferguson  v.  Wilson,  1866,  L.  R.  2  Ch.  77)— 
the  plaintiff  could  not,  under  Lord  Cairns's  Act,  get  damages.  But  by 
virtue  of  the  Judicature  Act,  1873  (see  ss.  16,  24  (7),  25  (11),  and  76), 
not  only  the  jurisdiction  under  Lord  Cairns's  Act,  but  also  all  the  juris- 
diction in  relation  to  damages  which  previously  was  vested  in,  or  capable 
of  being  exercised  by,  the  common  law  Courts,  became  vested  in  the 
(High  Court  of  Justice.  It  follows  that,  whether  the  High  Court  can  or 
,  cannot,  in  any  particular  case,  grant  specific  performance,  it  can  give 
damages  for  breach  of  the  contract;  so  that  the  Court  has  now  a  much 
larger  power  than  it  had  under  Lord  Cairns's  Act ;  for  whereas,  under 
that  Act,  the  plaintiff  had  first  to  make  out  that  he  was  entitled  to  an 
equitable  remedy  before  he  could  get  damages  at  all,  now  he  may  come 
/ 1  to  the  Court  and  say,  "  If  you  think  I  am  not  entitled  to  specific  per- 
/  /  formance  of  the  whole  or  any  part  of  the  contract,  then  give  me 
'  damages"  (see  per  Kay,  J,,  in  Mmore  v.  Pirrie,  1887,  57  L.  T.  N.  S.,  at 
p.  333,  and  per  Cotton,  L.J.,  in  Tamplin  v.  James,  1879,  15  Ch.  D,,  at 
p.  222).  Still,  in  a  case  in  which  a  plaintiff  chose  to  bring  his  action  to 
trial,  on  a  pleading  in  which,  alleging  his  willingness  to  perform  and 
offering  to  perform  a  contract,  he  claimed  specific  performance,  and 
added  a  merely  alternative  claim  for  damages  as  a  substitute  for  specific 
performance,  it  was  held  that  the  Judicature  Act,  1873,  made  no  differ- 
ence to  the  construction  of  such  a  claim ;  and,  it  appearing  that  the 
plaintiff  had,  by  selling  the  property  in  question,  rendered  specific  per- 
formance impossible,  the  claim  for  damages  failed  also  {Hipgrave  v.  Case, 


SPECIFIC  PERFOEMANCE  563 

1885,  28  Ch.  D.  356 ;  and  see  Lavery  v.  Pursell,  1888,  39  Ch.  D.  508,  in 
which  case,  however,  the  question  whether  damages  might  have  been 
given  under  the  Judicature  Act  of  1873  does  not  appear  to  have  been 
considered). 

In  Delves  v.  Graij,  [1902]  2  Ch.  ^06,  611,  two  trustees  having  con- 
tracted to  sell  some  copyhold  property  to  G.,  he,  before  the  date  fixed 
for  completion,  contracted  to  resell  it  to  D.,  one  of  the  trustees ;  and  it 
was  held  that  G.  could  not  enforce  specific  performance  against  D.,  not 
being  able  to  confer  upon  him  a  marketable  title,  and  further,  that  G. 
was  not  entitled  to  damages,  because  in  law  he  must  be  deemed  to  have 
known  that  D,  was  incapable  of  purchasing  under  the  circumstances. 

Lord  Cairns's  Act — which  applied  to  cases  where  the  damages  were 
merely  nominal,  as  well  as  to  those  where  they  were  substantial — was 
repealed  in  the  year  1883  by  the  Statute  Law  Revision  Act  of  that  year 
(46  &  47  Vict.  c.  49),  but  the  jurisdiction  of  the  Court  under  the 
repealed  Act  has  not  been  affected  by  the  repeal,  being  preserved*  by 
sec.  5  of  the  repealing  Act  itself  (see  Sayers  v.  Collyer,  1884,  28  Ch.  D., 
at  p.  107).  Nowadays,  however,  a  plaintiff  suing  upon  a  contract  will/I 
generally,  it  is  conceived,  prefer  to  invoke,  as  regards  damages,  the/t 
Court's  power  under  the  Judicature  Act,  1873,  rather  than  the  juris- 
diction which  Lord  Cairns's  Act  conferred. 

The  following  cases  may  be  referred  to  as  illustrations  of  the  manner 
in  which  the  Court  of  Chancery,  and  the  Chancery  Division  of  the  High 
Court,  successively  have,  since  the  passing  of  Lord  Cairns's  Act,  exer- 
cised their  respective  powers  of  granting  relief  by  way  of  damages : — 

Soames  v.  Edge,  1760,  John.  669 ;  70  E.  R.  588— B.  having  agreed 
to  build  a  house  on  land  of  A.'s,  and  to  accept  from  A.  a  lease  of  the 
land  and  house,  which  lease  A.  agreed  to  grant  when  the  house  should 
have  been  built,  it  was  held,  on  B.  making  default  in  building,  that  A. 
was  entitled  to  damages  for  the  non-building,  and  also  to  specific  per- 
formance of  the  contract  to  accept  a  lease. 

Jaques  v.  Millar,  1877,  6  Ch.  D.  153 — A.  having  agreed  to  take  a 
lease  of  works  belonging  to  B.  for  the  purpose,  as  B.  knew,  of  carrying 
on  there  an  oil-refiner's  business,  and  having,  owing  to  B.'s  refusal  to 
grant  the  lease,  been  delayed  for  fifteen  weeks  in  commencing  the  busi- 
ness, it  was  lield  that  A.  was  entitled  to  judgment  for  specific  perform- 
ance, and  also  to  damages  (which  the  judge  assessed  at  the  trial)  for  loss 
of  business  profits  during  the  fifteen  weeks.  (See,  too,  Jones  v.  Gardiner, 
[1901]  W.  N.  237.) 

Royal  Bristol  Permanent  Building  Society  v.  Bomash,  1887,  35  Ch.  D. 
390 — Judgment  for  specific  performance  of  a  contract  for  sale  of  houses, 
and  for  payment  by  the  vendor  to  the  purchaser  of  damages  for  (1)  the 
latter's  loss  of  a  tenant  by  reason  of  the  vendor  having  failed  to  give 
possession  on  the  day  fixed  for  completion,  and  (2)  deterioration  of  the 
property  subsequently  to  the  contract. 

Foster  v.  Wheeler,  1888,  38  Ch.  D.  130— Contract  between  A.  and 
B.,  that  B.  would  enter  into  an  agreement  with  A.'s  landlord  for  a  lease 
of  a  house  in  A.'s  occupation,  and  that  thereupon  A.  would  surrender 
his  lease.  B.  having  refused  to  perform  her  part  of  this  contract,  it  was 
held  that,  though  specific  performance  could  not  be  granted,  A.  was 
entitled  to  damages  for  B.'s  breach  of  contract.  (See,  too,  Cornwall  v. 
ffenson,  [1900]  2  Ch.  298,  reversing  [1899]  2  Ch.  710.) 

In  connection  with  this  subject  of  damages,  it  is  to  be  borne  in  mind  / 
that,  upon  a  contract  for  sale  and  purchase  of  real  estate,  if  the  vendor  / 

/ 


564  SPECIFIC  PEKFOEMANCE 

is,  without  any  default  on  his  part,  incapable  of  making  a  good  title,  the 
intending  purchaser  is  not  entitled  to  recover  compensation  in  damages 
for  the  loss  of  his  bargain.  Indeed,  it  has  even  been  laid  down  that  if 
a  person  enters  into  a  contract  to  sell  real  estate,  knowing  that  he  has 
no  title  to  it,  nor  any  means  of  acquiring  it,  the  intending  purchaser 
cannot,  by  an  action  founded  qn  breach  of  the  contract,  recover  any 
damages  beyond  expenses  actually  incurred  {e.g.  costs  of  and  incidental 
to  investigation  of  the  title,  which  he  may  recover  in  the  nature  of 
damages) ;  and  that  he  can  only  recover  other  damages  by  means  of  an 
action  for  deceit  (see  Bain  v.  Fothergill,  1873-74,  L.  E,  7  H.  L.  158,  at 
pp.  201,  207 ;  In  re  Scott  and  Alvarez's  Contract,  [1895]  1  Ch.,  at  p.  627 ; 
Gas  Light  and  Coke  Co.  v.  Towse,  1887,  35  Ch.  D.,  at  p.  543  ;  and  Sugden, 
Vendors  and  Purchasers,  13  ed.,  p.  300).  If,  however,  the  vendor  can' 
make  a  good  title  but  will  not,  or  will  not  do  what  he  can  do  and  ought 
to  do  in  order  to  obtain  one,  damages  may  be  given  to  the  purchaser  for  i 
loss  of  bargain  arising  from  the  vendor's  default  (Bay  v.  Singleton,  [1899]i 
2  Ch.  320,  329). 

Where  a  case  for  damages  is  made,  the  damages  are  sometimes 
assessed  by  the  judge  at  the  trial,  and  the  judgment  directs  payment  of 
the  amount  so  assessed ;  otherwise,  the  judgment  directs  an  inquiry  to 
be  made  as  to  what  damages  have  been  sustained  by  the  plaintiff,  or  as 
to  what  sum  of  money  ought  to  be  allowed  and  paid  by  the  defendant 
to  the  plaintiff  by  way  of  damages,  with  a  consequential  direction  for 
payment  of  the  damages  when  certified  (for  Forms,  see  Seton,  6th  ed., 
pp.  2207,  2227,  2270-2272). 

On  a  summons  under  the  Vendor  and  Purchaser  Act,  the  Court  has 
jurisdiction,  where  it  holds  that  a  good  title  has  not  been  shown,  to 
order  the  vendor  to  pay  to  the  purchaser,  as  in  the  nature  of  damages, 
interest  on  his  deposit,  if  any,  and  the  costs  of  investigating  the  title 
(In  re  Hargreaves  and  Thompson's  Contract,  1886,  32  Ch.  D.  454;  In  re 
Haedicke  and  Lipski's  Contract,  [1901]  2  Ch.,  at  p.  670);  but  damages  by 
way  of  compensation  to  a  purchaser  for  loss  occasioned  by  the  vendor's 
delay  in  completing  cannot  be  given  on  such  a  summons  {In  re  Wilsons 
and  Stevens'  Contract,  [1894]  3  Ch.  546). 

Where,  upon  the  defendant's  non-compliance  with  a  judgment  for 
specific  performance,  the  plaintiff  obtains  an  order  for  rescission  of  the 
contract,  he  cannot,  according  to  Henty  v.  Schroder,  1879,12  Ch.  D.  666 — 
a  decision  which  seems  open  on  this  point  to  criticism,  but  was  followed 
by  North,  J.,  in  Jcffery  v.  Stewart,  1899,  80  L.  T.  17 — have  also  an  order 
for  damages  for  breach  of  the  contract. 

Injunction. 

The  power  of  granting  an  injunction,  "the  strong  arm  of  equity," 
as  an  American  judge  has  called  it  (Mr.  Justice  Baldwin,  quoted  in 
2  Story's  Equit.  Juris]jr.,  13th  ed.,  p.  264,  note),  is  a  very  valuable  and 
efficient  instrument  of  the  Court  in  dealing  with  questions  of  specific 
performance,  and  has  in  times  past,  like  specific  performance,  encoun- 
tered and  overcome  no  little  hostility  on  the  part  of  common-law 
tribunals.  To  restrain  by  injunction  the  doing  of  acts  contravening  the 
stipulations  of  a  contract  operates,  in  effect,  to  enforce  those  stipulations 
specifically  (see  Lumley  v.  Wagner,  1852,  1  De  C,  M.  &  G.,  at  pp.  615, 
616 ;  42  E.  E.  691 ;  and  per  Kay,  L.J.,  in  Davis  v.  Corporation  of  Leicester, 
[1894]  2  Ch.,  at  p.  231).     And  so,  where  a  contract  contains  positive  as 


SPECIFIC  PERFORMANCE  565 

well  as  negative  terms,  and  the  former  are  capable  of  being  specifically 
enforced  (as,  for  instance,  in  Rankin  v.  Huskisson,  1830,  4  Sim.  13; 
58  E,  R.  6 ;  33  R.  R.  86),  the  enforcement  of  the  whole  of  the  contract 
may  be  effected  by  means  of  a  judgment  directing  performance  of  the 
positive  terms,  and  restraining  by  injunction  the^  brea^i_ofany  of_the 
negative  terms. 

In  the  noteworthy  case  of  Lumley  v.  Wagner,  1852,  1  De  G.,  M.  &  G. 
604 ;  42  E.  R.  687,  Lord  St.  Leonards  went  a  step  further,  and,  dealing 
with  a  contract  between  Mr.  Lumley  and  Mademoiselle  Wagner,  by 
which  she  agreed  to  sing  at  his  theatre  during  a  period  of  three  months 
and  not  to  sing  elsewhere  during  that  period,  he  granted  an  injunction 
to  restrain  a  breach  of  the  negative  stipulation,  although  the  perform- 
ance of  the  positive  stipulation  could  not  have  been  specifically  enforced. 
This  decision,  and  some  few  similar  ones,  before  and  after  this  date, 
which  are  to  be  found  in  the  Reports,  must  be  regarded,  it  is  conceived,  , 
as  instances  of  an_exception  from  the  general  rule  already  adverted  to  ' 
(sujjra,  p.  545),  that  aj)artial  specific  performance  will  not  be  granted 
where  the  Court  caniiot  enforce  the  whole  of  the  contract.  The  excep- 
tion appears  to  be  limited  to  cases  in  which  the  contract  contains  (as  in 
Lumley  v.  Wagner)  an  express,  as  distinguished  from  an  implied,  nega- 
tive term ;  a  ground  of  distinction  which  no  less  eminent  an  authority 
than  Lord  Selborne  has  characterised  as  "  highly  artificial  and  technical " 
(Wolverhampton,  etc.,  Ely.  Co.  v.  L.  &  N.-W.  Rly.  Co.,  1873,  L.  R. 
16Eq.,  at  p.  440).  For  "  every  agreement  to  do  a  particular  thing  in 
one  sense  involves  a  negative.  It  involves  the  negative  of  doing  that 
which  is  inconsistent  with  the  thing  you  are  to  do  "  {per  Lindley,  L.J., 
in  Whitwood  Chemical  Co.  v.  Hardman,  [1891]  2  Ch.,  at  p.  426).  Accord- 
ingly, the  practitioner  will  probably  do  well  to  follow  the  high  authority 
iust  cited  in  looking  upon  Lumley  v.  Wagner  "  rather  as  an  anomaly, 
to  be  followed  in  cases  like  it,  but  an  anomaly  which  it  would  be 
dangerous  to  extend "  (see  the  last-cited  case  at  p.  428 ;  also  Ehrman 
V.  Bartholomeiu,  [1898]  1  Ch.,  at  p.  674 ;  Fothergill  v.  Rowland,  1873, 
L.  R.  17  Eq.,  at  p.  141 ;  and  Bavis  v.  Foreman,  [1894]  3  Ch.  654).  "  The 
tendency  of  recent  decisions  ...  is  towards  this  view — that  the  Court 
ought  to  look  at  what  is  the  nature  of  the  contract  between  the  parties ; 
that  if  the  contract  as  a  whole  is  the  subject  of  equitable  jurisdiction, 
then  an  injunction  may  be  granted  in  support  of  the  contract  whether 
it  contain  or  does  not  contain  a  negative  stipulation;  but  that  if,  on 
the  other  hand,  the  breach  of  the  contract  is  properly  satisfied  by  dam- 
ages, then  that  the  Court  ought  not  to  interfere  whether  there  be  or  be 
not  the  negative  stipulation"  {'per  Fry,  L.J.,  in  Donnell  v.  Bennett,  1883, 
22  Ch.  D.,  at  p.  837;  see,  too,  per  Buckley,  J.,  in  Metropolitan  Electric 
Supply  Co.  V.  Cinder,  [1901]  2  Ch.,  at  p.  806). 

Besides  the  cases  in  which  an  injunction  is  used  by  the  Court  as  an 
instrument  for  enforcing  specific  performance,  there  are  many  in  which 
the  grant  of  an  injunction  may  be  incidental  to  proceedings  for  such 
enforcement.  If,  for  instance,  A.  had  agreed  to  sell  an  estate  to  B.,  and 
then  threatened  to  deal  with  the  estate  in  such  a  manner  as  to  prevent 
himself  from  performing  his  contract,  the  Court,  in  an  action  by  B.  for 
specific  performance,  would  interfere,  by  interlocutory  injunction,  to 
restrain  any  such  improper  dealing  by  A.  (see  Heathcote  v.  North  Stafford- 
shire Rly.  Co.,  1850,  2  Mac.  &  G.,  at  p.  112 ;  42  E.  R.  44 ;  and  Hadley 
V.  The  London  Bank  of  Scotland,  1865,  3  De  G,  J.  &  S.,  at  p.  70 ; 
46  E.  R.  564).     For  another  instance,  see  Attwood  v.  Barham,  1826, 

/ 


566  SPECIFIC  PERFOEMANCE 

2  Riiss.  186 ;  38  E.  R.  305.  And,  in  some  cases  of  sales  of  land  to 
railway  companies  {e.g.  Allgood  v.  Merryhent,  etc.,  Rly.  Co.,  1886,  33  Ch.  D. 
571),  after  judgment  directing  payment  of  the  purchase-money  and 
default  in  the  payment,  an  injunction  has,  at  the  instance  of  the  unpaid 
vendor,  been  granted,  restraining  the  company  from  running  tiains  over 
the  land,  and  from  continuing  in  possession  of  it. 

The  jurisdiction  exercised  in.  granting  injunctions  is  in  an  eminent 
degree  discretionary  {Loiv  v.  Innes,  1864,  4  De  G.,  J.  &  S.,  at  p.  290 ; 
46  E.  R.  930 ;  Dietrichsen  v.  Cabhurn,  1846,  2  Ph.,  at  p.  53 ;  41  E.  R. 
861 ;  78  R.  R.  17) ;  but  Lord  Cairns's  Act  (quoted  sup-a,  p.  562)  has  not 
altered  the  settled  principles  upon  which  Courts  of  equity  previously 
acted  in  interfering  by  way  of  injunction  {Shelfer  v.  City  of  London,  etc., 
Co.,  [1895]  1  Ch.  287 ;  see,  too,  Cowper  v.  Laidler,  [1903]  2  Ch.  337). 

The  Action, 
tribunal. 

Actions  for  the  specific  performance  of  contracts  between  vendors 
and  purchasers  of  real  estates,  including  contracts  for  leases,  are,  by 
sec.  34  of  the  Judicature  Act,  1873,  expressly  assigned  (subject  to  the 
powers  of  transfer  exercisable  under  the  Judicature  Acts  and  Rules  of 
Court)  to  the  Chancery  Division  of  the  High  Court  of  Justice.  Actions 
for  the  specific  performance  of  other  contracts  are  not  expressly  assigned 
to  any  Division  of  the  Court,  but  in  practice  they  mostly  find  their  way 
to  the  Chancery  Division. 

County  Courts  have  a  concurrent  (but  not  exclusive)  jurisdiction,  and 
can  exercise  all  the  power  and  authority  of  the  High  Court,  in  actions 
for  specific  performance  of  agreements  for  the  sale,  purchase,  or  lease  of 
any  property,  where  in  the  case  of  sale  or  purchase  the  purchase-money, 
or  in  the  case  of  a  lease  the  value  of  the  property,  does  not  exceed  the 
sum  of  £500  (see  Foster  v.  Beeves,  [1892]  2  Q.  B.  255);  and  in  relation 
to  such  actions  the  County  Court  judge  has  all  the  powers  and  authorities 
of  a  judge  of  the  Chancery  Division  (County  Courts  Act,  1888,  s.  67). 
"Where  the  property  agreed  to  be  sold  is  an  equity  of  redemption,  the 
action  is  within  the  jurisdiction  of  the  County  Court,  if  the  actual  pur- 
chase-money is  less  than  £500  {B.  v.  Judge  Whitehome,  [1904]  1  K.  B. 
827).  But,  where,  in  an  action  for  specific  performance  on  the  Equity 
side  of  the  Mayor's  Court  of  London,  it  appeared  that  the  whole  cause 
of  action  had  not  arisen  within  the  jurisdiction  of  that  Court,  the 
defendants  were  held  to  be  entitled  to  a  writ  of  prohibition  {Bowler 
V.  Barherton,  etc..  Syndicate,  [1897]  1  Q.  B.  164). 

It  may  here  be  mentioned  that,  in  certain  cases  of  agreements  for 
sale  of  Irish  holdings,  the  Irish  Land  Commission  has  jurisdiction  to 
make  a  decree  for  specific  performance,  by  virtue  of  the  Land  Law 
(Ireland)  Act,  1887,  50  &  51  Vict.  c.  33,  s.  22;  also  that,  by  the 
Supreme  Court  of  Judicature  Act  (Ireland),  1877,  Irish  actions  for  the 
specific  performance  of  all  contracts  in  respect  of  which  a  Court  of 
equity  decrees  performance  are  assigned  to  the  Chancery  Division  of 
the  High  Court  of  Justice  in  Ireland. 

PARTIES. 

The  general  rule  is  that  the  parties  to  a  specifically-enforceable 
contract,   and    they  alone,    are  the  proper   parties  to   an  action    for 


SPECIFIC  PEEFORMANCE  567 

enforcing  specific  performance  of  it  (see  Tasker  v.  Small,  1837,  3  Myl.  & 
Cr,,  at  p.  68;  40  E.  E.  850;  45  E.  E.  211 ;  and  consider  Ecclesiastical 
Commissioners  v.  Finney,  [1899]  1  Ch.  99  ;  2  Ch.  729,  [1900]  2  Ch. 
736,  where  it  was  ultimately  held  that  the  plaintiffs,  who  had  been 
consenting  parties  to  a  contract  for  sale  of  glebe  lands,  were  entitled 
only  to  a  vendor's  lien  on  the  lands  sold).  But  there  are  various 
events  and  circumstances  which  modify,  or  create  exceptions  from, 
this  rule. 

(i.)  The  death  of  a  party  may  occur  before  the  contract  has  been 
carried  into  effect. 

If  the  contract  is  for  sale  of  realty,  and  the  vendor  dies  before 
completion,  his  personal  representative,  as  being  the  person  entitled 
to  receive  the  purchase-money,  may  sue  the  purchaser  for  specific  per- 
formance. It  was  the  practice  of  the  Court  of  Chancery  to  require 
the  vendor's  heir  or  devisee  to  be  made  a  party  to  such  a  suit,  as 
being  interested  in  disputing  the  validity  of  the  contract  {Boberts 
V.  Marchant,  1843,  1  Ph.,  at  pp.  373,  374;  see,  too,  BucJcmaster  v. 
Rarrop,  1802,  1807,  7  Ves.  Jun.,  at  p.  343;  32  E.  E.  140;  6  E.  E. 
132;  13  Ves.  Jun.,  at  p.  472;  33  E.  E.  370;  9  E.  E.  212;  Broome  v. 
Mo7ick,  1805,  10  Ves.  Jun.,  at  p.  611;  32  E.  E.  981;  8  E.  E.  48; 
Townsend  v.  Champernowne,  1821,  9  Price  Ex.  130;  23  E.  E.  651);  and 
it  is  conceived  that,  for  the  reason  already  given,  that  practice  ought 
still  to  be  followed,  although  the  subject-matter  of  the  contract  may 
have  vested  in  the  vendor's  personal  representative  under  sec.  1  of 
the  Land  Transfer  Act,  1897.  Similarly,  if,  the  contract  being  one 
for  sale  of  realty,  after  the  vendor's  death  the  purchaser  sues  for 
specific  performance,  he  should,  it  is  conceived,  make  both  the  vendor's 
personal  representative  and  also  his  heir  or  devisee  defendants  to  the 
action.  If,  on  the  other  hand,  the  purchaser  dies  before  completion  of 
a  contract  for  sale  of  realty,  it  is  conceived  that  either  (i.)  the  vendor 
may  sue  for  specific  performance,  making  the  purchaser's  personal 
representative,  and  also  his  heir  or  devisee,  the  defendants,  or  (ii.)  the 
purchaser's  heir  or  devisee  may  sue  the  vendor,  making  the  personal 
representative  of  the  purchaser  either  a  co-plaintiff  or  a  defendant ; 
and  further  that,  assuming  the  equitable  estate  which  passed  by  the 
contract  to  the  purchaser  (Shaiv  v.  Foster,  1872,  L.  E.  5  H.  L.,  at 
pp.  338,  349),  to  have  vested  in  his  personal  representative  by  virtue 
of  the  above  Act  of  1897  (s.  1),  that  representative  may  maintain  an 
action  against  the  vendor  for  specific  performance  of  the  contract,  making 
the  purchaser's  heir  or  devisee  a  party  to  the  action. 

Where  a  deceased  vendor's  heir  is  an  infant,  and  the  property  is  not 
capable  of  being  conveyed  by  the  personal  representative,  recourse  may 
have  to  be  had  to  the  provisions  of  the  Trustee  Act,  1893,  in  order  to 
procure  the  transfer  of  the  legal  estate  (see  Land  Transfer  Act,  1897, 
ss.  1  (4),  2  (2);  Conveyancing  Act  of  1881,  s.  4;  Trustee  Act,  1893, 
ss.  26  (ii.)  (a),  31, 32) ;  and,  as  to  the  necessity  of  obtaining  judgment  in  an 
action,  compare  In  re  Colling,  1886,  32  Ch.  D.  333,  with  In  re  Chiming, 
1869,  L.  E.  5  Ch.  62. 

If  a  deceased  vendor  of  real  estate  has  left  a  widow  who,  but  for  the 
contract,  would  be  entitled  to  dower  or  freebench,  she  should  be  made 
a  party  to  the  purchaser's  action,  and  the  contract  may  be  enforced 
against  her  (see  the  Dower  Act,  1833,  s.  5 ;  Hinton  v.  Hinton,  1755, 
2  Ves.  638  ;  28  E.  E.  569). 

A  contract  to  take  a  lease  may  be  enforced  either  by  {e.g.  Ingle  v. 


/ 


568  SPECIFIC  PERFORMANCE 

Vaughan  Jenkins,  [1900]  2  Ch.  368),  or  against  the  proposed  lessee's 
executors  ;  and  in  the  latter  case  the  Court  will  take  care  that  the  lease 
is  so  framed  as  not  to  impose  personal  liability  upon  them  {Stephens  v. 
Hotham,  1855,  1  Kay  &  J.  571). 

Where  the  performance  of  a  contract  requires  the  exercise  of 
personal  skill  or  taste  by  one  party,  his  death  puts  an  end  to  the 
contract,  and  his  executors  are  under  no  liability  in  respect  of  it  (see 
per  Parke,  B.,  in  Sihoni  v.  Kirkman,  1836,  1  Mee.  &  W.,  at  p.  423). 

(ii.)  There  may  have  been  an  assignment  by  instrument  inter  vivos, 
or  by  operation  of  law. 

In  the  case  of  an  assignment  by  instrument  inter  vivos,  the  assignee 
of  the  benefit  of  the  contract  may  generally  sue  for  performance 
(making  the  assignor  a  party) ;  unless  the  contract  is  one  which  requires 
some  personal  skill  or  discretion  for  its  performance  by  the  assignor,  or 
is  otherwise  personal  to  him,  or  being,  for  instance,  an  agreement  for 
a  lease,  contains  a  stipulation  prohibiting  assignment  of  the  lease  (see 
CrosUe  v.  Tooke,  1833,  1  Myl.  &  K.  431 ;  39  E.  R.  745 ;  36  R.  R.  342 ; 
Buckland  v.  Papillon,  1866,  L.  R.  2  Ch.  67 ;  S.  C.  L.  R.  1  Eq.,  at  p.  481 ; 
OHerlihy  v.  Hedges,  1803,  1  Sch.  &  Lef.  123 ;  9  R.  R.  23  ;  Flood  v. 
Finlay,  1811,  2  Ball.  &  B.  9  ;  12  R.  R.  55 ;  Tolhurst  v.  Associated  Port- 
land Cement  Manufacturers,  [1901]  2  K.  B.  811;  [1902]  2  K.  B.  660; 
[1903]  A.  C.  414,  420,  423  ;  and  consider  Friar7j  Holroyd  &  Healey's 
Breweries  v.  Singleton,  [1899]  1  Ch.  86 ;  [1899]  2  Ch.  261). 

If  A.,  after  contracting  to  sell  or  let  property  to  B.,  conveys  it  to  C, 
a  action  for  specific  performance  of  the  contract  may  generally  be 
maintained  by  B.,  not  only  against  A.,  but  also  against  C.,  unless  the 
latter  has  obtained  the  legal  estate  for  value  and  without  notice  of  the 
contract  {e.g.  Meux  v.  Malthy,  1818,  2  Swans.  277). 

The  trustee  in  bankruptcy,  or  the  committee  in  lunacy  (but  see 
Order  16,  r.  17),  of  a  vendor,  or  of  a  purchaser,  may  sue,  and  the  com- 
mittee of  a  lunatic  vendor  or  purchaser  may  (together  with  the  lunatic) 
be  sued,  for  specific  performance.  Specific  performance  may  also  be 
enforced  against  the  trustee  in  bankruptcy  of  a  vendor  {Pearce  v. 
Ba^taUe's  Trustee  in  Bankruptcy,  [1901]  2  Ch.  122),  but  not  against 
a  purchaser's  trustee  in  bankruptcy  without  his  consent,  while  his 
right  of  disclaimer  is  subsisting  {Holloway  v.  York,  1877,  25  W.  R. 
627). 

(iii.)  There  are  cases  of  agency. 
T"  Where  persons  contract  expressly  as  agents  for  named  principals, 
I  the  principals  are,  generally,  the  only  proper  parties  to  sue  or  be  sued 
{Ex  'parte  Hartop,  1806,  12  Ves.  Jun.,  at  p.  352 ;  33  E.  R.  133).  Where, 
however,  an  agent  contracts  in  his  own  name,  the  unnamed  principal 
may,  generally,  sue  or  be  sued  (provided  the  contract  is  not  personal  to 
the  apparent  principal  [see  (ii.)  above])  without  the  agent  being  made 
a  party  ;  but  the  agent  also  is  liable  to  be  sued  {Rigging  v.  Senior,  1841, 
8  Mee.  &  W.  834;  Saxon  v.  Blake,  1861,  29  Beav.  438;  54  E.  R.  697; 
Folder  v.  Rollins,  1872,  L.  R.  7  Q.  B.,  at  p.  624).  And  directors  of  com- 
panies are  in  the  same  position,  as  regards  liability  upon  contracts,  as 
other  agents  {Ferguson  v.  Wilson,  1866,  L.  R.  2  Ch.,  at  p.  89 ;  Kay  v. 
Johnson,  1864,  2  Hem.  &  M.,  at  p.  123). 

In  some  cases,  e.g.  where  an  agent  claims  to  be  personally  interested 
{Heard  v.  Pilley,  1869,  L.  R.  4  Ch.,  at  p.  551),  or  where  an  auctioneer, 
as  agent  for  both  parties  to  a  sale,  is  holding  a  deposit  of  large  amount 
{Earl  of  Egmont  v.  Smith,  1877,  6  Ch.  D.,  at  pp.  474,475),  an  agent  may 


SPECIFIC  PERFORMANCE  569 

properly  be  joined  as  a  party  to  the  action.  And  it  may  here  be  men- 
tioned that  there  are  cases  in  which  a  company  may  be  sued  upon  a 
contract  made  by  its  projectors  before  its  incorporation  (see  and  compare 
Edwards  v.  Grand  Junction  Rly.  Co.,  1836,  1  Myl.  &  Cr.,  at  p.  672 ;  40 
E.  R.  533 ;  43  R.  R.  265  ;  Eastern  Counties  Rly.  Co.  v.  Hawkes,  1855, 

5  H.  L.  C.  331 ;  10  E.  R.  928 ;  andPmto/t  v.  Liverpool,  etc.,  Rly.  Co.,  1856, 
iUd.  605;  lOE.  R.  1037). 

(iv.)  There  are  cases  not  falling  within  any  of  the  foregoing  heads, 
in  which  a  third  person,  not  named  as  a  party  to  a  contract,  may  sue 
or  be  sued  upon  or  in  connection  with  it.  Thus,  if  the  contract,  though 
in  form  made  between  A.  and  B.,  is  intended  to  secure  a  benefit  to  C., 
so  that  C.  is  entitled  to  say  he  has  a  beneficial  right  as  cestui  que  trust 
under  it,  C.  may  enforce  the  contract  against  A.  and  B.  {Gandy  v.  Gandy, 

1885,  30  Ch.  D.,  at  p.  67).  Again,  children  born  of  a  marriage  in  con- 
templation of  which  a  settlement  was  executed  under  which  they  are 
interested,  may  sue  for  the  execution  of  that  settlement  {Green  v.  Paterson, 

1886,  32  Ch.  D.,  at  p.  106  ;  and  cp.  Rill  v.  Gomme,  1839,  5  Myl.  &  Cr.  250 ; 
41  E.  R.  366  ;  48  R.  R.  297).  And  a  third  person,  who  is  in  possession 
of  land,  the  subject  of  the  contract,  and  will  be  affected  by  the  judgment 
{Bishop  of  Winchester  v.  Mid-Hants  Rly.  Co.,  1867,  L.  R.  5  Eq.,  at  p.  21), 
or  who  claims  an  interest  in  the  purchase-money  on  the  ground  of  some 
agreement  with  the  vendor  ( West  Midland  Rly.  Co.  v.  Nixon,  1863, 1  Hem. 

6  M.,  at  p.  181 ;  71  E.  R.  79),  may  properly  be  joined  as  a  defendant  to  an 
action  for  specific  performance  of  the  contract. 

(v.)  Where  the  contract  sued  upon  relates  to  registered  land  or  a 
registered  charge.  In  such  cases,  the  Court  may  cause  third  persons, 
who  have  registered  estates  or  rights  in  the  land  or  charge,  or  have 
entered  up  notices,  charges,  or  inhibitions  against  the  same,  to  appear 
in  the  action,  and  show  cause  why  the  contract  should  not  be  specifically 
performed  (Land  Transfer  Act,  1875,  s.  93). 

PLEADING — TRANSFER — NE   EXEAT. 

A  plaintiff  seeking  specific  performance  should  take  care,  in  his 
statement  of  claim  (if  any)  to  plead  a  complete,  clear,  and  specifically 
enforceable  contract.  Otherwise,  in  the  event  of  there  being  default  in 
delivery  of  a  defence,  he  will  not  be  in  a  position  to  obtain  judgment 
under  Order  27,  r.  11;  for,  on  an  application  under  that  rule,  he  will 
not  be  allowed  to  supplement  his  pleading  by  putting  in  the  written 
agreement  (if  any)  or  other  evidence  {Smith  v.  Buchan,  1888,  36  W.  R. 
631). 

A  vendor  plaintiff,  who  may  desire  to  obtain  a  declaration  of  vendor's 
lien  {Tacon  v.  National  Standard,  etc.,  Co.,  1887,  56  L.  T.  N.  S.  165),  or  of 
his  right  to  forfeit  the  deposit  and  resell  the  property  pursuant  to  the 
usual  stipulation  in  that  behalf,  should  expressly  ask  for  it  in  the 
indorsement  on  his  writ,  as  well  as  in  his  statement  of  claim,  if  any 
(see  Kingdon  v.  Kirk,  1887,  37  Ch.  D.  141). 

A  purchaser  plaintiff  may  ask,  in  the  alternative,  for  rescission  of  the 
contract,  and  return  of  his  deposit,  if  any  (see  Levy  v.  Stogdon,  [1899] 
1  Ch.,  at  p.  10).  But,  where  the  purchaser  has  had  constructive  notice 
of  restrictions  affecting  the  property,  he  cannot  obtain  rescission  on  the 
ground  of  the  existence  of  those  restrictions  {In  re  Childe  v.  Hodgson's 
Contract,  [1906]  54  W.  R.  234). 

Claims  for  rectification  of  a  written  contract,  and  for  specific  per- 

/ 


570  SPECIFIC  PERFORMANCE 

formance  of  the  contract  as  rectified,  may,  where  the  Statute  of  Frauds 
does  not  create  a  bar,  be  combined  in  one  and  the  same  pleading  {Olley 
V.  Fisher,  1886,  34  Ch.  D.,  at  p.  370). 

A  defendant  should  take  care  to  plead  distinctly,  in  his  defence 
(if  any),  every  ground  of  defence  which  may,  in  the  particular  case,  be 
available,  e.g.  non-compliance  with  the  provisions  of  the  Statute  of  Frauds 
(Order  19,  r.  15  ;  Oldhams  Brothers  v.  Brunning,  1896,  74  L.  T.  N.  S.  370  ; 
James  v.  Smith,  [1891]  1  Ch.,  at  p.  389). 

If  what  the  defendant  wants  is  not  simply  to  defeat  the  plaintiff's 
claim — if,  for  instance,  he  desires  rescission,  setting  aside,  or  rectifica- 
tion of  the  contract,  or  repayment  of  deposit — he  should  counterclaim 
for  it. 

TKANSFER. 

As  to  transfer  to  the  Chancery  Division  of  a  King's  Bench  action, 
where  the  defendant  counterclaims  specific  performance,  see  Hollmvay 
v.  York,  1877,  2  Ex.  D.  333 ;  Storey  v.  Waddle,  1879, 4  Q.  B.  D.  289 ;  and 
London  Land  Co.  v.  Harris,  1884,  13  Q.  B.  D.  540 ;  and,  as  to  the  recog- 
nition of  an  equitable  right  to  specific  performance  appearing  incidentally 
in  the  course  of  a  King's  Bench  action,  see  Williams  v.  Snoivden,  1880, 
W.  K  124. 

NE  EXEAT. 

With  respect  to  the  grant  of  a  writ  of  ne  exeat  regno  in  a  vendor's 
action  for  specific  performance,  see  Bochm  v.  Wood,  1824,  Turn.  &  R., 
at  pp.  343  et  seq. ;  Morris  v.  M'Neil,  1827,  2  Russ.,  at  p.  605;  Drover 
V.  Beyer,  1879,  13  Ch.  D.,  at  pp.  243,  244 ;  Hands  v.  Hands,  1881,  43 
L.  T.  750 ;  Colverson  v.  Bloomfield,  1885,  29  Ch.  D.,  at  pp.  342,  343 ;  and 
Order  69. 

GROUNDS   OF  DEFENCE. 

Generally,  it  is  a  good  defence  to  show  that  the  particular  case 
before  the  Court  falls  within  some  or  one  of  those  classes  of  cases 
already  adverted  to  {supra,  pp.  544,  545),  in  which  the  Court  declines,  as 
a  rule,  to  enforce  specific  performance.  It  may,  however,  be  convenient 
to  the  practitioner  to  have  this  general  statement  supplemented  by  some 
concise  particulars  of  the  principal  grounds  of  defence,  upon  which,  when 
the  circumstances  of  the  particular  case  render  any  of  them  appropriate 
and  available,  a  defendant  to  an  action  for  specific  performance  may 
rely. 

Ambiguity. — Where  theierms  of  a  contractara -ambiguous,  the  Court 
may  on  that  ground  refuse  to  enforce  it  (Clowes  v.  Higginson,  1817, 1  Ves. 
&  Bea.,  at  p.  533  ;  35  E.  R.  207  ;  12  R.  R.  284 ;  Harnett  v.  Yielding,  1805, 
2  Sch.  &  Lef.,  at  p.  558  ;  9  R.  R.,  at  p.  104 ;  and  see  the  cases  cited  infra, 
under  the  head  Uncertainty). 

Bankruptcy. — See  supra,  p.  568. 

Breach  of  Trust. — The  Court  will  not  give,  even  to  an  innocent  pur- 
chaser, the  relief  of  specific  performance,  where  trustees  have  contracted 
to  sell  to  him  under  circumstances  rendering  the  sale  a  breach  of  trust 
on  their  part  {Ord  v.  Noel,  1820,  5  Madd.  438 ;  56  E.  R.  962 ;  21  R.  R.  328) ; 
and  a  purchaser  or  intended  lessee  may  set  up  such  a  breach  by  way  of 
defence  {Dunn  v.  Flood,  1885,  28  Ch.  D.,  at  p.  593 ;  Tolson  v.  Sheard,  1876, 
5  Ch.  D.,  at  p.  25).  Other  cases  illustrating  this  principle  are  Dance  v. 
Goldingham,  1873,  L.  R.  6  Ch.,  at  pp.  911,  913  ;  and  Oceanic,  etc.,  Co.  v. 
Sutherierry,  1880,  16  Ch.  D.,  at  p.  244. 


SPECIFIC  PERFOEMANCE  571 

Condition. — It  may  afford  a  defence  that  the  contract  was,  in  its 
inception,  conditional  or  contingent,  and  has  not  become  absolute 
{Regent's  Canal  Co.  v.  Ware,  1857,  23  Beav.,  at  p.  586  ;  53  E.  E.  230),  or 
that  some  cpnditioji_pi:ecedent  has  not  been  performed  by  the  plaintiff 
(  Williams  'V.  Brisco,  1882,  22  Ch.  13.7  at  p.  -149),  or  cannot  be  fulfilled 
{Modlem  v.  Snowball,  1861,  31  L,  J.  Ch.  44).  As  to  waiver  of  a  condition, 
see  Lloyd  v.  Nowell,  [1895]  2  Ch.  744,  distinguishing  Hawksley  v.  Outram, 
[1892]  3  Ch.  359,  376,  378. 

Consideration. — That  absence  of  consideration  may  be  a  ground  of 
defence  has  already  been  indicated  (swpm,  p.  545).  Eeference  may  also 
be  made,  on  this  topic,  to  Cochrane  v.  Willis,  1865,  L.  E.  1  Ch.,  at  pp.  63, 
64,  and  to  the  observations  of  Lindley,  L.J.,  in  Stephens  v.  Green,  [1895] 
2  Ch.,  at  p.  162.  With  respect  to  inadequacy  of  consideration,  see  infra, 
under  the  head  Hardship. 

Cmyoration. — Inasmuch  as,  subject  to  some  exceptions  based  upon 
convenience  (see  cases  cited  in  Young  cfe  Co.  v.  Mayor,  etc.,  of  Royal  Leam- 
ington Spa,  1883,  8  App.  Cas.,  at  pp.  524,  525,  and  Lawford  v.  Billericay 
Rural  Council,  [1903]  1  K.  B,  772,  782),  or  authorised  by  statute  {e.g.  the 
Companies  Clauses  Consolidation  Act,  1845,  s.  97,  and  the  Companies  Act, 
1867, 8. 37),  the  general  rule  of  law  is  that  a  corporation  cannot  bindingly 
contract  otherwise  than  under  its  common  seal,  the  fact  that  the  con- 
tract sued  on  is  not  under  seal  may  be  a  defence  {e.g.  Mayor,  etc.,  of 
Oxford  v.  Crow,  [1895]  3  Ch.  535).  But  this  defence  will  not  avail  where 
there  has  been  part  performance  (see  cases  cited  in  Melbourne  Banking 
Corpm-ation  v.  Brougham,  1878-79,  4  App.  Cas.,  at  p.  169). 

Coverture. — This  may  still,  in  some  cases  {e.g.  Castle  v.  Wilkinson, 
1870,  L.  R.  5  Ch.  534,  and  see  Incapacity,  infra,  p.  574),  be  a  ground  of 
defence  for  a  married  woman.  But,  in  relation  to  married  women's  con- 
tracts, regard  must  nowadays  be  had  to  the  Married  Women's  Property 
Acts,  1882  to  1907. 

Default  of  Plaintiff. — A  defendant  may  successfully  resist  perform- 
ance by  establishing  that  the  plaintiff  has  not  performed  some  essential 
term,  express  or  implied,  of  the  contract,  which  was  performable  by  him 
{e.g.  Tildesley  v.  Clarkson,  1852,  30  Beav.,  at  p.  426;  54  E.  E.  954),  or, 
being  a  tenant  for  life,  has  omitted  to  take  some  step  which  he  ought, 
pursuant  to  the  Settled  Land  Acts,  to  have  taken  {per  Lindley,  L.J.,  in 
Mogridge  v.  Clapp,  [1892]  3  Ch.,  at  p.  395  ;  cp.  In  re  Todd  and  M'Fadden's 
Contract,  [1908]  1  I.  E.  213),  or  has  not  fulfilled  some  material  repre- 
sentation, as  to  his  own  future  plans  or  acts,  made  by  him  at  the  time 
of,  and  as  an  inducement  for,  the  contract  {Beaumont  v.  Dukes,  1822, 
Jac,  at  pp.  424-426 ;  Lamare  v.  Dixon,  1873,  L.  E.  6  H.  L.,  at  p.  428), 
provided,  of  course,  that  the  defendant  has  not  waived  or  occasioned  the 
default.  Again,  it  is  a  ground  of  defence  that  the  plaintiff  has  disabled 
himself  from  effectually  performing  his  part  of  the  contract  by  com- 
mitting an  act  of  bankruptcy,  or  a  felony  {Franklin  v.  Lord  Brovmlow, 
1808,  14  Ves.  Jun.,  at  pp.  556,  557;  33  E.  E.  633,  634;  Willingham  v. 
Joyce,  1796,  3  Ves.  Jun.,  at  p.  169),  or  has  been  wilfully  guilty  of  acts  or 
omissions  disentitling  him  to  relief  {e.g.  Gregory  v.  Wilson,  1852,  9  Hare, 
at  p.  686). 

Delay. — A  binding  contract  may  be  constituted  by  offer  and  accept- 
ance ;  but  where  the  accepting  party  is  plaintiff,  and  his  acceptance  has 
been  unreasonably  delayed,  the  defendant  may  plead  no  contract  {e.g. 
WillianTs  v.  WiUiams,  18^3,  17  Beav.,  at  p.  216;  51  E.  E.  1016). 

Further,  though  the  contract  be  admitted,  a  defence  may  be  raised 

/ 


572  SPECIFIC  PEEFORMANCE 

by  showing  that  there  has  been  undue  delay  by  the  plaintiff  in  perform- 
ing his  part  of  the  contract,  or  in  commencing  {Levy  v.  Stogdon,  [1898] 
1  Ch,,  at  p.  484;  [1899]  1  Ch.  5)  or  prosecuting  his  action ;  particularly 
where  the  siibject-matter  of  the  contract  is  of  a  speculative  or  fluctuat- 
ing character,  as,  for  instance,  a  reversionary  interest,  or  a  tavern 
'(Spurrier  v.  Hancock,  1799,  4  Ves.  Jun.  667;  31  E.  R.  344;  Mills  v. 
Haywood,  1877,  6  Ch.  D.,  at  p.  202) ;  unless,  indeed,  the  defendant  has 
himself  occasioned  the  delay,  or  has  waived  his  right  to  object  on  the 
score  of  it  (see  per  Lindley,  M.R.,  in  Levy  v.  Stogdon,  [1899]  1  Ch.,  at 
p.  10),  But  a  purchaser's  delay  may  be  excused,  if  he  has,  to  the  vendor's 
knowledge,  been  in  possession  under  the  contract  {Mills  v.  Haywood,  uhi 
,  supra). 

I  Where  time  is  of  the  essence  of  a  contract,  either  expressly  by  virtue 
'  of  a  stipulation  ~to  tnat  eU'eci,  or  impliedly,  oy  reason  of  the  nature  of 
-the  subject-matter  {e.g.  a  public-house  sold  as  a  going  concern,  Tadcaster 
Tmver  Breivery  Co.  v.  Wilson,  [1897]  1  Ch.,  at  p.  711),  or  shares  {In  re 
Schwabacher,  1908,  98  L.  T.,  at  p.  129),  or  of  the  surrounding  circum- 
stances {Tilley  v.  Thomas,  1867,  L.  R,  3  Ch.,  at  p.  67),  non-observance 
of  the  time  is  generally  fatal ;  and  although  the  time  for  completion 
may  originally  not  have  been  essential,  one  party  may,  after  improper 
delay  by  the  other  party,  make  it  essential,  by  notice  fixing  a  reasonable 
time  within  which  the  contract  must  be  completed  {Green  v.  Sevin,  1879, 
13  Ch.  D.  589,  and  cases  there  cited;  see,  too,  Halkett  v.  Earl  of  Dudley, 
[1907]  1  Ch.,  at  p.  600). 

On  the  other  hand,  though  the  case  be  one  of  a  class  in  which  the 
time  for  completion  is  usually  essential,  a  condition  for  payment  of 
interest  in  the  event  of  non-completion  at  the  specified  date  may  operate  - 
to  show  that  time  was  not  of  the  essence  {Webb  v.  Hughes,  [1870]  L.  R.  \ 
10  Eq.  281). 

Fraud. — A  contract  will  not  be  specifically  enforced  against  a 
defendant  who  establishes  that  his  entering  into  it  was  procured  or 
occasioned  by  some  fraud  on  the  part  of  the  plaintiff  or  his  agent ;  but 
whether  the  fraudulent  act  of  a  stranger  can  ever  operate  to  deprive  an 
innocent  vendor  of  his  right  to  enforce  a  contract,  qumre  {Union  Bank 
V.  Munster,  1887,  37  Ch.  D.,  at  pp.  53-55).  Fraud  is  infinite  in  variety 
{Beddatvay  v.  Banham,  [1896]  A.  C,  at  p.  221).  In  some  cases — where,- 
for  instance,  the  nature  of  the  contract  is,  or  the  antecedent  fiduciary 
relations  of  the  parties  have  been,  such  as  to  make  full  disclosure  of  all 
material  facts  a  duty — even  Bilence  may  amount  to  fraud  (-firoww/i'g  v. 
Campbell,  1880,  5  App.  Cas.,  at  pp.  950,  954) ;  though  "  silence  is  innocent 
and  safe,  where  there  is  no  duty  to  speak  "  {Chadwick  v.  Manning,  [1896] 
A.  C,  at  p.  238 ;  cp.  Turner  v.  Green,  [1895]  2  Ch.,  at  p.  209).  But,  of 
course,  if  the  defendant,  on  discovering  the  fraud,  elects  to  abide  by  the 
contract,  he  cannot  afterwards  plead  the  fraud  as  a  defence  to  an  action 
for  specific  performance.  See,  too,  Odessa  Tramways  Co.  v.  Mendel,  1878, 
8  Ch.  D.  235,  244  (defendant  setting  up  his  own  fraudulent  collusion 
with  the  other  party's  agent  in  connection  with  one  part  of  a  divisible 
contract).  That  the  specific  enforcement  of  an  alleged  contract  would 
involve  a  fraud  on  the  public  was,  in  a  modern  case  {Post  v.  March,  1880, 
16  Ch.  D.  395),  held  to  be  a  good  ground  for  defence.  And  it  may  here 
be  noted  that  the  Statute  of  Frauds  does  not  prevent  the  proof  of  a 
fraud  {Rochefoucauld  v.  Boustead,  [1897]  1  Ch.,  at  p.  206). 

Hardship. — The  Court,  in  the  exercise  of  its  judicial  discretion,  is 
.averse  from  enforcing  a  hard  bargain,  even  where  no  impropriety  of 


SPECIFIC  PEEFOEMANCE  573 

conduct  is  imputable  to  the  party  suing  {Falcke  v.  Gray,  1859,  4  Drew., 
at  p.  659 ;  see,  for  an  instance,  Wedgwood  v.  Adams,  1843,  6  Beav.  600 ; 
also  Preston  v.  Luck,  1884,  27  Ch.  D.,  at  p.  506 ;  Hope  v.  Walter,  [1899] 
1  Ch.  879;  [1900]  1  Ch.  257;  and  consider  Budd  v.  Lascelles,  [1900] 
1  Ch.  815;  and  per  Eomer,  L.J.,  in  In  re  Highett  &  Bird's  Contract, 
[1903]  1  Ch.,  at  pp.  293,  294).  But,  in  considering  the  question  of  hard- 
ship, the  time  when  the  contract  was  entered  into  is  the  material  time; 
and  suhsequeht  events  cannot,  usually,  be  relied  upon  as  raising  a 
defence  on  this  ground.  Nor  will  the  defence  avail,  where  the  hard- 
ship has  arisen,  or  may  arise,  through  the  defendant's  own  default 
{Pembroke  v.  Thorpe,  1740,  3  Swans.  W6n. ;  36  E.  E.  939 ;  19  E.  E.  254), 
jor  act  (e.g.  Helling  v.  Lumley,  1858,  3  De  G.  &  J.,  at  p.  498;  44  E.  E. 
1360),  or  by  reason  of  his  having  made  a  speculative  purchase  of  property 
which  turns  out  to  be  worthless  {e.g.  Haywood  v.  Cope,  1858,  25  Beav., 
at  p.  150 ;  53  E.  E.  593).  Again,  as  a  general  rule,  inadequacy  of  price, 
unless  so  striking  as  to  amount  to  conclusive  evidence  of  fraud,  is  not 
in  itself  a  sufficient  ground  for  refusing  a  specific  performance  {Coles  v. 
Trecothick,  1804,  9  Ves.  Jun.,  at  p.  246;  32  E.  E.  597;  7  E.  E.  167); 
and  there  appears  to  be  now  {i.e.  since  the  Sales  of  Eeversions  Act, 
1867)  no  reason  for  excepting  contracts  for  the  sale  of  reversionary 
interests  from  the  operation  of  this  rule;  though  the  last-mentioned 
statute  has  not  otherwise  affected  the  Court's  jurisdiction  to  give  relief 
against  unconscionable  bargains  (see,  e.g..  Fry  v.  Lane,  1888,  40  Ch.  D. 
312). 

Illegality. — Upon  grounds  of  public  policy,  the  Court  declines  to 
enforce  illegal  contracts  {Sykes  v.  Beadon,  1879,  11  Ch.  D.,  at  pp.  193- 
197);  as  where,  for  instance,  the  consideration  is  an  agreement  to  stifle 
a  prosecution  (  Windhill  Local  Board  of  Health  v.  Vint,  1890,  45  Ch.  D. 
351 ;  Jones  v.  Merionethshire,  etc..  Society,  [1892]  1  Ch.,  at  p.  188),  or  even 
where  the  transaction  savours  of  champerty  {De  Hoghton  v.  Money,  1866, 
L.  E.  2  Ch.,  at  p.  169),  or  where  the  contract,  having  originally  been 
legal,  has  become  illegal  by  virtue  of  some  subsequent  statute  {Atkinson 
v.  Ritchie,  1809,  10  East,  at  p.  534;  10  E.  R,  at  p.  374).  Consider,  too, 
Eighy  v.  Connol,  1880,  14  Ch.  D.  482,  decided  in  the  year  1880,  where 
it  was  held  that  a  trade  union  being,  apart  from  the  Trades  Union  Act, 
1872,  an  illegal  association,  the  Court  would  not  directly  enforce  an 
agreement  between  its  members  for  providing  benefits  to  members, 
though  in  some  cases  the  Court  might,  by  means  of  an  injunction, 
indirectly  enforce  such  an  agreement  (  Wolfe  v.  Matthe^vs,  1882,  21  Ch.  D., 
at  p.  196  ;  and  see  Howden  v.  Yorkshire  Miners  Association,  [1903]  1  K.  B., 
at  p.  325;  Tajf  Vale  Ely.  v.  Amalgamated  Society  of  Railway  Servants, 
[1901]  A.  C,  at  p.  428).  The  Court,  however,  looks  with  great  dis- 
favour on  the  objection  of  illegality,  when  urged  by  a  party  to  a  contract 
who  has  received  the  consideration  for  which  he  contracted  {Shrewsbury, 
etc.,  Ely.  Co.  v.  London  and  North- Western  Rly.  Co.,  1853,  16  Beav.,  at 
p.  451 ;  51  E.  E.  853). 

Impossibility. — "  In  bills  for  specific  performance,"  said  Lord  Hard- 
wicke  in  Green  v.  Smith,  1738,  1  Atk.,  at  p.  573 ;  26  E.  E.  360,  "  this 
Court  never  gives  relief  where  the  act  is  impossible  to  be  done ; "  but 
it  must  always  be  borne  in  mind  that,  though  specific  performance  be 
impossible,  a  defendant  may  be  liable  in  damages.  The  impossibility 
of  performance  may  occur,  or  arise,  in  a  variety  of  ways — by  reason,  for 
instance,  of  the  destructiQn  or  extinction  of  the  subject-maittfir  of  a 
contract;,  or,  in  the  case  of  a  contract  to  allot  shares,  by  reason  of  all 

/ 


574  SPECIFIC  PERFORMANCE 

the  shares  having  been  allotted  to  other  persons  before  the  commence- 
ment of  the  action  {Ferguson  v.  Wilson,  1866,  L.  R,  2  Ch.,  at  pp.  86,  87) ; 
or  from  a  change  in  the  political  relations  of  a  contracting  party's  country 
ij(Atkinson  v.  Ritchie,  1809,  10  East,  at  p.  535 ;  10  R.  R.,  at  p.  374),  or 
//from  the  refusal  of  a  third  person  to  give  some  necessary  licence  or  con- 
^Uent  {Weather  all  v.  Geering,  1806,  12  Ves.  Jun.,  at  p.  511 ;  33  E.  R.  193  ; 
8  R.  R.  369  ;  Bermingham  v.  Sheridan,  1864,  33  Beav,  660),  or  from  there 
not  being  time  enough  for  one  party  to  do  works  which,  by  the  terms 
of  the  contract,  were  to  be  done  within  a  specified  time  {Asylum  for 
Female  Orphans  v.  Waterloo,  1868,  16  W.  R.  1102),  or  from  the  intended 
term  of  a  lease  having  expired  before  trial  of  an  action  for  enforcing 
an  agreement  for  the  lease  {Walters  v.  Northern  Coal  Mining  Co.,  1855, 
5  De  G.,  M.  &  a,  at  p.  639;  43  E.  R.  1019),  or  from  a  plaintiff's  lack 
of  power  to  perform  his  part  of  the  contract  {e.g.  Sheffield  Corporation  v. 
Sheffield  Electric  Light  Co.,  [1898]  1  Ch.  203).  But  where  the  meaning* 
of  a  contract  is,  that  one  party  shall  do  a  certain  thing,  but  may,  at  his 
option,  do  it  in  either  of  two  modes,  and  one  of  those  modes  become^ 
impossible  by  the  act  of  God,  he  is  bound  to  perform  it  in  the  othe* 
mode,  which  is  possible  {Barhworth  v.  Young,  1856,  1  Drew.,  at  p.  25)1 
A  fortiori  if,  at  the  time  of  the  contract,  one  of  the  alternatives  i^ 
impossible,  the  other,  being  possible,  must  be  performed. 

Incapacity. — It  may  also  be  a  ground  of  defence  that  the  party  sued  was, 
at  the  time  of  the  contract,  under  some  personal  or  particular  incapacity 
which  operated  to  prevent  the  contract  from  binding  him.  Thus  an 
infant  is,  generally,  incapable  of  entering  into  a  binding  contract  {King 
V.  Bellord,  1863,  1  Hem.  &  M.,  at  p.  347;  71  E.  R.  151);  so  is  a  married 
woman  acting  alone,  as  regards  property  which  is  not  her  separate  pro- 
perty, or  subject  to  a  power  of  appointment  by  deed  vested  in  her  {Cahill 
V.  Cahill,  1883,  8  App.  Cas.,  at  p.  428 ;  Martin  v.  Mitchell,  1820,  2  Jac.  & 
W.,  at  pp.  424,  425 ;  37  E.  R.  689,  690 ;  22  R.  R.  184),  except  that  she 
can  bindingly  contract  with  her  husband  for  a  compromise  of  legal 
proceedings  between  them  {McGregor  v.  McGregor,  1888,  21  Q.  B.  D., 
at  p.  430) ;  so,  again,  is  a  person  of  unsound  mind,  provided  the  plain- 
tiff' at  the  time  of  the  contract  knew  of  the  unsoundness  {Imperial 
Loan  Co.  v.  Stone,  [1892]  1  Q.  B.  509  ;  but  distinguish  In  re  Pagani, 
[1892]  1  Ch.,  at  p.  238);  so,  where  the  defendant  was,  to  the  plaintiff's 
knowledge,  in  a  state  of  intoxication  at  the  time  of  the  contract  {Cooke 
V.  Clayworth,  1811,  18  Ves.  Jun.,  at  p.  15 ;  but  distinguish  Shaw  v. 
Thackray,  1853,  1  Sm.  &  G.,  at  p.  539 ;  65  E.  R.  236) ;  and  so,  where 
the  defendant  is  under  disability  to  sell  (otherwise  than  under  the 
Lands  Clauses  Acts),  as  being  an  ecclesiastical  corporation  {Wycombe 
Bly.  Co.  V.  Donnington  Hospital,  1866,  L.  R.  1  Ch.,  at  p.  273). 

Incompleteness. — A  defendant  may  defend  himself  by  showing  that, 
at  the  time  of  the  issue  of  the  writ,  the  contract  or  (if  the  case  is  one 
in  which  writing  is  requisite)  the  written  evidence  of  it  was  incomplete, 
i.e.  was  defectiyein_respect  of  some  term  which  is  essential  (see  supra, 
pp.  548,  569)  or  mafefialj"  an^"  cannot  be  supplied  either~By  ordinary 
legal  implication,  or  by  some  means  indicated  in  the  contract  itself  (see 
Hart  V.  Hart,  1881,  18  Ch.  D.,  at  p.  689).  But  the  defence  may  fail 
if,  the  defect  being  curable,  it  is  owing  to  the  defendant's  own  default 
that  it  has  not  been  cured  (see  Pritchard  v.  Ovey,  1820,  1  Jac.  &  W., 
at  pp.  403,  404;  37  E.  R.  429;  21  R.  R.  195,  and  Smith  v.  Peters,  1875; 
L.  R.  20  Eq.,  at  p.  513). 

Again,  the  contract  alleged  and  sued  upon  may  be  incomplete,  in 


i\ 


I 


SPECIFIC  PEEFOEMANCE  575 

the  sense  that,  for  one  reason  or  another,  it  never  became  a  completely 
concluded  contract.  This  ground  of  defence  is  often  available  in  cases 
of  contracts  alleged  to  have  been  constituted  by  ofi'er  and  acceptance. 
As  to  contracts  of  that  kind,  see  Oriental  Inland  Steam.  Co.  v.  Briqgs, 
1861,  4  De  G.,  F.  &  J.,  at  p.  197;  Williams  v.  Williams,  1853,^17 
Beav.,  at  p.  216 ;  Henthorn  v.  Fraser,  [1892]  2  Ch.,  at  p.  31,  considered 
and  applied  in  James  v.  Institute  of  Chartered  Accojcntants,  1908,  98 
L.  T.,  at  p.  230;  Mcol's  Case,  1885,  29  Ch.  D.,  at  p.  426;  Kennedy  v. 
Lee,  1817,  3  Mer.,  at  p.  454;  Simpson  v.  Rtighes,  1897,  45  W.  E.  221. 

Inconvenience. — Whether  a  contract  is  a  convenient  or  an  incon- 
venient one  is  for  the  parties  to  consider  when  they  enter  into  it  (per 
Farwell,  J.,  in  Hexter  v.  Pearce,  [1900]  1  Ch.,  at  p.  346),  Mere  incon- 
venience, not  am9unting  to  Hardship  (q.v.  supra,  p.  572),  is  not,  it  is 
conceived,  a  good  ground  of  defence. 

Infancy. — Lunacy. — See  Incapacity,  supra. 

3Iisdescription. — This  may,  if  material,  be  a  ground  for  avoiding  the 
contract  altogether  (Flight  v.  Booth,  1834,  1  Bing.  K  C,  at  p.  377 ;  In 
re  Puckett  and  Smith's  Contract,  [1902]  2  Ch.  258).  But  an  error  of 
misdescription  not  affecting  the  substance  of  the  thing  sold,  may  be 
insufficient  to  prevent  specific  performance  (In  re  Fawcett  and  Holmes, 
1889,  42  Ch.  D.  150 ;  cp.  In  re  Hare  and  O'Mores  Contract,  [1901]  1  Ch. 
93).  For  cases  of  reference  to  a  plan,  see  In  re  Freeman  and  Taylor's 
Contract,  1907,  97  L.  T.  39,  and  In  re  Wellings  and  Parsons  CorUract, 
ibid.  165. 

Misrepresentation. — A  false  representation,  knowingly  made  by  a' 
party  or  his  agent,  in  order  to  induce  a  contract,  is  Fraud  (q.v.  supra, 
p.  572 ;  and  see  Archer  v.  Stone,  1898,  78  L.  T.  K  S.,  at  p.  35).  But 
apart  from  fraud,  the  circumstance  that  a  party  to  a  contract,  or  his 
^gent  (Midlens  v.  Miller,  1882,  22  Ch.  D.,  at  p.  199),  made  carelessly, 
or  even  quite  innocently,  some  material  misrepresentation,  which  was 
in  fact  relied  upon  by  the  other  party,  and  was  an  inducement  to  the 
contract,  will  generally  afford  to  that  other  party  a  good  defence  in 
an  action  for  specific  performance  (see,  too,  Wauton  v.  Coppard,  [1899] 
1  Ch.,  at  pp.  97,  98).  It  is  no  answer  to  a  defence  on  this  ground  that 
the  defendant  was  offered,  or  possessed,  means  of  testing  the  truth  of 
the  representation  complained  of,  if  he  did  not  avail  himself  of  those 
means  (Aaron  s  Reefs  v.  Twiss,  [1896]  App.  Cas.,  at  p.  279);  but  it  may 
be  an  answer,  if  he  used  such  means  (Attwood  v.  Small,  1838,  6  CI.  & 
Fin.  232;  7  E.  E.  684;  49  E.  E.  115).  And  the  defence  is  untenable 
if  the  defendant  all  along  knew  the  truth  of  the  matter  (e.g.  Nene 
Valley,  etc..  Commissioners  v.  Dunkley,  1876,  4  Ch.  D.,  at  p.  4 ;  Dyer  v. 
Hargrave,  1805,  10  Ves.  Jun.,  at  p.  509;  32  E.  E.  942;  8  E.  E.  36); 
for,  in  such  a  case,  he  cannot  have  been  misled  by  the  representation, 
and  there  is  no  room  for  drawing  the  inference  of  fact  (Smith  v.  Chadwick, 
1884,  9  App.  Cas.,  at  p.  196)  that  he  relied  upon  it. 

A  misrepresentation  may  be  made  by  conduct  (Andrew  v.  Aitken, 
1883,  31  W.  E.  425),  or  even  by  silence  (Pmver  v.  Barrett,  1887,  19 
L.  E.  Ir.,  at  p.  487),  as  well  as  by  words ;  but  mere  general  statements, 
advertising  flourishes,  have  often  been  held  not  to  amount  to  mis- 
representation substantial  enough  to  excuse  a  defendant  from  per- 
formance (e.g.  Dimmock  v.  Hallett,  1866,  L.  E.  2  Ch.,  at  p.  27 ;  see,  too, 
Blaiberg  v.  Keeves,  [1906]  2  Ch.  175,  where  there  was  held  to  have 
been  no  misrepresentation). 

Mistake. — Contract  is  consenMis  ad  idem,  and  where  a  contract  has 

/ 


576  SPECIFIC  PERFOEMANCE 

been  founded  upon  a  common  mistake  of  both  parties  with  regard  to 
some  material  matter,  that  is  a  ground  of  defence  to  an  action  for 
specific  performance  {e.g.  Cochrane  v.  Willis,  1865,  L.  R.  1  Ch.  58 ;  see, 
too,  Van  Praagh  v.  Everidge,  [1903]  1  Ch.  434;  and  cp.  Beale  v.  Kyte, 
[1907]  1  Ch.  564,  where  the  vendor  was  held  entitled  to  rectification). 
Further,  a  mistake  induced  by,  or  contributed  to  by,  the  plaintiff,  or 
his  agent,  may  afford  a  good  defence  {e.g.  Denny  v.  Hancock,  1870,  L.  R. 
6  Ch.  1) ;  and  so  may  even  a  mistake  on  the  part  of  the  defendant,  or 
his  agent,  only  {e.g.  Malins  v.  Freeman,  1837,  2  Keen,  at  p.  34 ;  and  see 
Stewart  v.  Kennedy,  1890,  15  App.  Cas.,  at  p.  105).  But  where  there 
has  been  no  misrepresentation,  and  no  ambiguity  in  the  terms  of  a  con- 
tract, a  defendant  will  not,  generally,  be  allowed  to  evade  performance 
by  simply  stating  that  he  has  made  a  mistake  {Tamplin  v.  James,  1880, 
15  Ch.  D.,  at  p.  217).  As  to  mistake  concerning  the  person  contracted 
with,  see  Smith  v.  Wheatcroft,  1878,  9  Ch.  D.  223,  and  compare  Nash  v. 
Dix,  1898,  78  L.  T.  N.  S.,  at  pp.  448,  449. 

Mistakes  of  law,  as  well  as  mistakes  of  fact,  may  afford  a  defence 
(Allcard  v.  Walker,  [1896]  2  Ch.,  at  p.  381,  and  cases  there  cited).  And 
if  the  mistake  consists  in  the  omission,  from  a  written  memorandum  of 
agreement,  of  something  which  was  verbally  agreed  upon,  the  defendant 
may  prove  the  omission  by  parol  evidence,  and  will  not  be  compelled  to 
perform  the  contract  except  with  the  omitted  term  included  {Joynes  v. 
Statham,  1746,  3  Atk.  388;  26  E.  R.  1023). 

It  is,  however,  to  be  borne  in  mind  that,  where  a  contract  has  been 
reduced  to  writing,  one  party's  mistaken  belief,  not  induced  by  the 
other  party,  in  regard  to  the  nature  of  the  obligations  which  he  has, 
according  to  the  true  construction  of  the  instrument,  undertaken,  will 
not  suffice  to  enable  the  mistaken  party  to  escape  from  performance ; 
for  every  person  who  becomes  a  party  to  a  written  contract,  contracts 
to  be  bound,  in  case  of  dispute,  by  the  interpretation  which  a  Court  of 
law  may  put  upon  the  language  of  the  instrument  (see  Stewart  v. 
Kennedy,  No.  2,  1890,  15  App.  Cas.  108,  and  at  pp.  121-123). 

_  '^')dii.nlity^—-'\'i  at  the  time  when  the  contract  was  made — which  is  i. 
the  crucial  time  for  this  purpose — it  was  not  mutual,  that  is  to  say, 
was  such  that,  though  enforceable  against  one  of  the  parties,  it  was  not 
enforceable  against  the  other,  that  circumstance  is  generally  a  good 
defence.  "  In  order  that  the  Court  may  interfere  there  must  be  mutual' 
rights  capable  of  being  enforced  by  the  Court  "  {'per  Lord  Cranworth  in 
Blackett  v.  Bates,  1865,  L.  R.  1  Ch.,  at  p.  125). 

A  defendant,  for  instance,  may  successfully  resist  performance  at  the 
suit  of  an  infant,  because  he  could  not  have  enforced  performance  against 
the  infant  {Flight  v.  Bolland,  1828,  4  Russ.,  at  p.  301);  so,  also,  where 
the  plaintiff  at  the  time  of  the  contract  had  no  title  {Hoggart  v.  Scott, 
1830,  1  Russ.  &  M.,  at  p.  295 ;  39  E.  R.  113).  But  a  defendant  will  not 
be  held  excused  where  he  has  so  conducted  himself  as  tnjvflivg  this  nhjpp- 
tion  {Hoggart  v.  Scott,  ubi  supra) ;  or,  it  is  conceived,  where  it  is  owing 
loniis  own  default  that  a  contract,  originally  mutual,  has  become 
unenforceable  by  him ;  or  where  he  has,  but  the  plaintiff  has  not,  signed 
a  written  contract  falling  within  the  Statute  of  Frauds,  for,  in  this  case,/ 
the  plaintiff,  by  suing,  has  made  the  contract  mutual  {Flight  v.  Bolland\ 
ubi  sup^a) ;  or  where  a  defendant,  having  contracted  to  sell  substantially 
more  than  he  is  able  to  convey,  is  sued  for  specific  performance  with 
compensation,  although  here  he  could  not  have  enforced  the  contract 
against  the  purchaser  (see  pp.  558,  559,  supra). 


SPECIFIC  PEKFOKMANCE  577 

A  contract,  originally  one-sided,  may  have  become  mutual ;  as  where, 
for  instance,  A.  has  contracted  to  sell  property,  or  to  renew  a  lease  of  it 
{Dawson  v.  Lepper,  1892,  29  L.  K.  Ir.,  at  p.  216),  to  B.,  upon  request 
within  some  limited  period  by  B.,  and  the  request  has  been  duly  made. 
Here,  of  course,  no  defence  can  be  maintained  on  the  ground  of  the 
original  absence  of  mutuality. 

Repudiation. — A  purchaser  may  have  an  equitable  right,  arising  out 
of  want  of  mutuality,  to  repudiate  the  contract ;  and  this  right,  if  exer- 
cised promptly,  may  be  a  good  ground  of  defence  to  an  action  for  specific 
performance.  But,  after  judgment  for  specific  performance,  a  defendant 
purchaser  cannot  repudiate  the  title  or  the  contract  without  the  leave 
of  the  Court  {Halkett  v.  Earl  of  Dudley,  [1907]  1  Ch.  590,  599,  601). 

Rescission. — If  the  defendant  can  show  that  the  contract  has  been 
effectually  rescinded,  that  is,  of  course,  a  good  defence  to  an  action  for 
specific  performance  of  it.  Such  rescission  may  have  been  brought  about 
in  a  variety  of  ways.  The  parties  may  simply  have  agreed  with  one 
another,  either  in  writing  or,  notwithstanding  that  the  contract  was  one 
required  by  law  to  be  expressed  in  writing,  by  parol  {Davis  v.  Symonds^ 
1787,  1  Cox,  at  p.  406  ;  29  E.  R.  1223 ;  1  R.  K.,  at  p.  67 ;  Vezey  v.  Rash- 
leigh,  [1904]  1  Ch.  534),  to  rescind.  Or,  without  expressly  agreeing  to 
rescind  their  original  contract,  they  may  have  come  to  some  fresh  agree- 
ment which  is  so  inconsistent  with  the  original  contract  as,  in  effect,  to 
abrogate  it.  Or  there  may  have  been,  on  the  part  of  the  plaintiff,  such 
a  waiver  or  abandonment,  either  by  words  or  by  conduct,  of  his  rights 
under  the  contract,  as  to  dispense  the  defendant  from  performance,  on 
his  clearly  proving  the  waiver  or  abandonment  {Carolan  v.  Brabazon, 
1846,  3  Jo.  &  Lat.,  at  pp.  209,  210;  Moore  v.  Crofton,  1846,  ibid.,  at  pp. 
445,  446).  Or,  again,  as  commonly  happens  in  cases  of  sales  on  the 
Stock  Exchange,  the  original  contract  may  have  been  put  an  end  to  by 
the  substitution  for  it  of  a  binding  contract  between  the  seller  and  a 
nominee  of  the  original  buyer.  Or  the  defendant  may  have  exercised, 
reasonably  and  in  good  faith,  a  power  of  rescission  reserved  to  him  by  the 
contract  {In  re  Starr-Bowkett  Building  Society,  etc.,  1889,  42  Ch.  D.  375  ; 
Smith  v.  Wallace,  [1895J  1  Ch.  385;  distinguish  In  re  Deighton  and 
Harris's  Contract,  [1898]  1  Ch.  458  ;  also  In  re  Spindler  and  Mears'  Con- 
tract, [1901]  1  Ch.  908  ;  In  re  Jackson  and  Hadens  Contract,  [1906]  1  Ch. 
412 ;  Quinion  v.  Home,  [1906]  1  Ch,  596 ;  and  In  re  Weston  and  Thomas* 
Contract,  [1907]  1  Ch.  244,  248,  in  each  of  which  cases  the  vendors  had 
exercised  a  power  of  rescission  unreasonably).  Or  he  may  have  rescinded 
on  the  strength  of  some  circumstance  which  the  Court  recognises  as 
entitling  a  party  to  a  contract  to  annul  it — fraud,  for  instance,  or  mis- 
representation (see  Holliwdl  v.  Seacombe,  [1906]  1  Ch.  426,  433),  or 
absolute  refusal  to  perform,  or  unreasonable  delay,  on  the  part  of  the 
other  party.  Note,  however,  that  a  letter  written  "  without  prejudice  "^ 
is  not  a  valid  notice  of  rescission  {In  re  Weston,  etc.,  ubi  supra). 

Statute  of  Frauds. — Non-compliance  with  the  requirements  of  this 
statute  is  a  very  common  ground  of  defence.  This  topic  has  already 
been  discussed  {sup-a,  pp.  546  et  seq. ;  see,  too.  Van  Praagh  v.  JSveridge, 
[1903]  1  Ch.  434). 

Time. — The  cases  in  which  lapse  of  time,  or,  in  particular,  the  non- 
observance  of  some  stipulation  in  the  contract  with  respect  to  time, 
furnishes  a  ground  of  defence,  have  been  adverted  to  under  the  head 
Delay  {supra,  p.  571). 

Title. — It  may  be  a  ground  of  defence   that   the   plaintiff,   being 
VOL.  XIII.  37 

/ 


578  SPECIFIC  PERFORMANCE 

/  yead^i.cannQt  make-fiuch  a  title  as  the  purchaser  is  entitled^  in  accord- 
/    ance  with  the  contract,  to  require  (see,    e.g.  Pemsel  v.  Tucker,  [1907] 
^    2  Ch.  191,  where  a  restrictive  stipulation  was  held  to  be  a  defect  in  the 
title;  and  In  re  Judge  and  Sheridan's  Contract,  1907,  96  L.  T.  451).     An. 
objection  of  this  kind  is  sometimes  adjudicated  at  the  trial  {e.g.  Bates 
V.  Kesterton,  [1896]  1  Ch.  159),  but  oftener  in  the  proceedings  upon  an 
Inquiry  as  to  Title  {infra,  p.  583),  or  at  the  hearing  of  a  summons  under 
the  Vendor  and  Purchaser  Act,  1874  {In  re  Walker,  etc.,  [1901]  2  Ch. 
,383;  In  re  Howgate,  etc.,  [1902]  1  Ch.  451). 
1        Generally,  if  a  vendor  can  make  a  good  title  at  any  time  before  the 
//  day  fixed  for  completion  of  the  contract,  it  will  be  enforced,  but  if  he 
j   has  no  title  in  himself,  he  will  not  be  allowed  to  insist  on  the  purchaser 
I   accepting  the  title  of  some  third  person  who  can  make  a  good  title  {In  re 
Bryant,  etc.,  1889,  44  Ch.  D.,  at  pp.  223,  224;  cp.  Halkett  v.  Earl  of 
Dudley,  [1907]  1  Ch.,  at  pp.  597,  601 ;  and  distinguish  In  re  Baker  and 
Selmon's  Contract,  [1907]  1  Ch.  238).     In  some  cases,  the  defence  will 
succeed  if  it  is  shown  that  the  title  is  doubtful,  in  regard  to  some  ques- 
tion of  law  or  of  fact  {Alexander  v.  Mills,  1870,  L.  R.  6  Ch.,  at  p.  131 ; 
Mogridge  v.  Clapp,  [1892]  3  Ch.,  at  p.  392 ;  In  re  Scott,  etc.,  [1895]  1  Ch., 
at  pp.  603,  604,  c-p.  p.  609);  but  as  to  general  matters  of  law,  including 
the  construction  of  general  Acts  of  Parliament,  the  Court,  nowadays, 
usually  solves  the  doubt  by  deciding  the  question  {In  re  Thackwray, 
etc.,  1888,  40  Ch.  D.,  at  pp.  38,  39).     A  purchaser  is  not  justified  in 
repudiating  a  contract  without  investigation  of  the  title,  merely  because 
he  finds  that  one  link  in  it  is  a  voluntary  conveyance  executed  before 
the  Voluntary  Conveyance  Acts,  1893  {Noyes  v.  Paterson,  [1894]  3  Ch. 
267). 

With  respect  to  a  vendor's  obligations  as  regards  title,  see,  further, 
the  Vendor  and  Purchaser  Act,  1874,  ss.  1,  2 ;  Lysaght  v.  Edwards,  1876, 
2  Ch.  D.,  at  p.  507 ;  In  re  Highett,  etc.  (leasehold  house),  [1903]  1  Ch. 
287. 

Ultra  Vires. — It  may  be  a  good  defence  that  the  contract  sued  on  is 
one  which  it  was  beyond  the  powers  of  a  defendant  corporation,  or  of  its 
officers  to  make  (see  Ashhury  Ely.,  etc.,  Co.  v.  Riche,  1875,  L.  R.  7  H.  L. 
653  ;  Earl  of  Shreivsbury  v.  North  Staffordshire  Ely.  Co.,  1865,  L.  R.  1  Eq., 
at  p.  617).  A  contract  may,  however,  though  ultra  vires  the  directors 
of  a  company,  be  one  which  the  company  is  competent  to  adopt,  and  if 
it  be  adopted  by  ratification  or  acquiescence  on  the  company's  part,  it 
becomes  enforceable  against  the  company.  A  stranger  contracting  in 
good  faith  with  a  corporation  is  entitled  to  assume  that  whatever  ought, 
according  to  its  regulations,  to  have  been  done,  in  order  to  put  it  into  a 
position  to  contract  with  him,  was  duly  done  {Royal  British  Bank  v. 
Turquand,  1856,  6  El.  &  Bl.  327).  And  in  a  case  where  a  railway  com- 
pany had  statutory  power  to  buy  land  for  extraordinary  purposes,  it  was 
held  that  an  honest  vendor  of  land  to  the  company  was  not  bound  to  see 
that  the  land  was  strictly  required  for  such  purposes,  and  a  defence  on 
the  ground  of  ultra  vires  failed  {Eastern  Counties  Rly.  Co.  v.  Hawkes, 
1855,  5  H.  L.  C.  331 ;  10  E.  R.  928).  See,  too,  Corlett  v.  .S^.-^.  and 
Chatham,  etc..  Committee,  [1905]  2  Ch.  280,  where  the  defence  of  ultra 
vires  failed;  and^er  Fry,  J.,  in  Odessa  Tramways  Co.  v.  Mendel,  1877, 
8  Ch.  D.,  at  p.  243  (agreement  partly  intra  vires  and  partly  ultra 
vires). 

Uncertainty. — A  contract  must,  in  order  that  it  may  be  specifically 
enforced,  be  ce^rtain  and,  defijjite  {Lord  Walpole  v.  Lord  Orford,  1797, 


SPECIFIC  PERFOEMANCE  579 

3  Ves.  Jun.,  at  p.  420).  Accordingly,  uncertainty,  indefiniteness,  vague- 
ness, or  obscurity  as  to  the  terms  or  extent  of  a  contract  may  afford  a 
ground  of  defence.  For  examples  of  this,  reference  may  be  made  to 
Harnett  v.  Yielding,  1805,  2  Sch.  &  Lef.  549 ;  9  E.  R.  98 ;  Lord  James 
Stuart  V.  L.  &  K-  W.  Rly.  Co.,  1852,  1  De  G.,  M.  &  G.,  at  p.  735 ;  42  E.  E. 
738;  Taylor  v.  Pwtington,  1855,  7  De  G.,  M.  &  G.  328;  44  E.  E.  128 ; 
and  Buminens  v.  BoUns,  1865,  3  De  G.,  J.  &  S.  88 ;  46  E.  E.  571 ;  see, 
too,  Pearce  v.  Watts,  1875,  L.  E.  20  Eq.  492 ;  and  Savill  Brothers,  Ltd.  v. 
Bethell,  [1902]  2  Ch.,  at  pp.  530,  541).  But  the  conduct  of  the  parties 
after  the  contract  may  displace  an  objection  which  might  originally  have 
been  raised  on  this  score ;  and  the  Court  will  be  slow  to  give  effect  to 
such  a  defence  where  there  has  been  fraud  on  the  part  of  the  defendant, 
or  part  performance  {Oxford  v.  Provand,  L.  E.  2  P.  C.  135 ;  Chattock  v. 
Miller,  1878,  8  Ch.  D.,  at  p.  181 ;  Hart  v.  Hart,  1881, 18  Ch.  D.,  at  p.  685). 
In  connection  with  this  topic  it  is  to  be  borne  in  mind  that,  if  words 
which  by  themselves  would  constitute  a  promise  are  accompanied  by 
words  showing  that  the  promisor  is  to  have  a  discretion  or  option  as  to 
whether  he  will  carry  out  that  which  purports  to  be  the  promise,  there 
is  no  contract  on  which  an  action  can  be  brought  (see  Broome  v.  Speak, 
[1903]  1  Ch.,  at  p.  599). 

Unfairness. — The  Court  will  not  enforce  specific  performance  where 
to  do  so  would  be  contrary  to  those  principles  of  justice  and  fairness 
by  which  the  Court  is  always  guided  in  exercising  that  extraordinary 
jurisdiction  {per  Lindley,  M.E.,  in  Hope  v.  Walter,  [1900]  1  Ch.,  at  p. 
359,  where  the  defendant,  the  purchaser,  had  discovered  before  com- 
pletion that  the  property  was  being  used  by  the  tenant  as  a  disorderly 
house). 

EVIDENCE — PAROL  VARIATION. 

It  has  already  been  noticed  {supra,  p.  551)  that  there  are  certain  cases 
of  contract  in  which,  although  the  Statute  of  Frauds  requires  written 
evidence  of  the  terms  of  the  contract,  the  Court  allows  them  to  be  proved 
by  parol ;  also  that  parol  evidence  may  be  admissible  for  identification  of 
documents  {supra,  p.  548),  or  the  subject-matter  of  contract  {supra, 
p.  549) ;  and  that  parol  evidence  is  admissible  to  prove  the  rescission  of 
a  written  contract  {supra,  p.  577 ;  see,  too,  Price  v.  Dyer,  1810-11, 17  Ves. 
Jun.,  at  pp.  363,  364;  34  E.  E.  137 ;  11  E.  E.  102),  though  it  is  not 
admissible  to  prove  a  subsequent  contract  to  vary  the  terms  of  a  contract 
expressed  in  writing  and  by  law  required  to  be  in  writing  {Vezey  v. 
Bashleigh,  [1903]  1  Ch.  634).  It  is  now  proposed  to  advert  briefly  to 
another  and  important  category  of  cases,  in  which,  the  contract  sued  on 
being  in  writing,  it  is  sought  by  one  of  the  parties  to  an  action  for  specific 
performance  to  set  up  a  parol  variation  of  the  written  contract. 

Parol  Variation. — Independently  of  the  Statute  of  Frauds,  it  is  a 
rule  of  the  common  law  that  parol  evidence  cannot  be  received  to 
contradict  a  written  contract.  But  Courts  of  equity  have  long  held 
that,  when  the  exercise  of  their  discretionary  jurisdiction  in  specific 
performance  is  invoked,  a  defendant  may  addncQ  parol  eyidftngfi  to  show  \  . 
th^ii-by  fraud,  mistake^  or  ~surprise""'the  "^writing  sued  upon  does  not  j »  * 
correctly-  or_Gompletely  ^jc^ress  the  real  Imrgain  (see  Joynes  v.  Statham, 
1^46,  3  Atk7387';  26  E.^TVi^S  ^'BamsbottrnfTyrUosden,  1812,  1  Ves.  & 
Bea.,  at  p.  168 ;  35  E.  E.  66 ;  12  R.  E.  207 ;  Clowes  v.  Higginson,  1814, 
ihid.,  at  pp.  526,  527 ;  also  ibid.,  at  p.  378 ;  35  E.  E.  147 ;  12  E.  E.  284). 


580  SPECIFIC  PERFOEMANCE 

Cases  in  which  the  defende  is  that  there  was  something  by  parol,  which 
is  of  the  essence  of  the  contract  but  not  expressed  in  the  writing,  differ, 
of  course,  from  those  in  which  the  defendant's  point  is  that,  though 
there  is  a  clear  contract  in  writing,  it  ought  not  to  be  performed  because 
of  some  collateral  circumstances  which  show  fraud,  mistake,  or  surprise. 
Both  grounds  of  defence,  however,  may  legitimately  be  matters  for  parol 
evidence  {Dear  v.  Verity,  1869,  17  W.  R,  at  pp.  568,  569).  Where  the 
effect  of  the  parol  evidence  is  to  show  that  the  parties  were  at  cross- 
purposes,  the  Court  declines  to  interfere  {Clowes  v.  Higginson,  ubi  supra, 
at  p.  535) ;  but  where  it  shows  that  the  parties  were  at  one,  but  that 
some  material  item  of  their  parol  contract  has  been  omitted  from  the 
written  memorandum  of  it,  there  the  Court  will,  at  the  defendant's 
request,  enforce  performance  of  the  written  contract  with  the  parol 
variation  (see  Fife  v.  Clayton,  1807,  13  Ves.  Jun.  546;  33  E.  R.  398; 
9  R.  R.  220).  And  where  the  plaintiff  submits  to  perform  the  omitted 
term,  he  may  obtain  similar  relief  {Martin  v.  Pycroft,  1852,  2  De  G., 
M.  &  G.  785;  42  E.  R.  1079;  cp.  BoUnson  v.  Page,  1826,  3  Russ.  114, 
121 ;  38  E.  R.  519 ;  and  Smith  v.  Wheatcroft,  1878,  9  Ch.  D.  223).  It 
depends,  in  fine,  on  the  particular  circumstances  of  each  case,  whether 
a  parol  variation  set  up  by  a  defendant  will  defeat  the  plaintiff's  riglit 
to  performance,  or  whether  the  Court  will  perform  the  contract,  taking 
care  that  the  subject-matter  of  the  parol  agreement  is  also  carried  inta 
efiect  {London,  etc..  Ply.  Co.  v.  Winter,  1840,  Cr.  &  Ph.,  at  p.  62 ;  41  E.  R. 
412;  54  R.  R.  201).  Sometimes  the  Court  allows  the  plaintiff  to  elect 
between  having  his  action  dismissed,  and  having  judgment  for  perform- 
ance with  the  variation  {e.g.  Pamsbottom  v.  Gosclen,  ubi  supra).  It  must,, 
however,  be  borne  in  mind  that  if,  subsequently  to  a  written  contract 
falling  within  the  scope  of  the  Statute  of  Frauds,  the  parties  have- 
verbally  agreed  to  vary  it,  but  the  variations  have  not  been  acted  upon, 
neither  party  can  escape  from  performance  of  the  written  contract  by 
reason  only  of  the  parol  variations ;  for  to  allow  parol  evidence  of  such 
variations  to  be  given  would  be  directly  contrary  to  the  statute  (see- 
Price  V.  Dyer,  1810-11,  17  Ves.  Jun.,  at  p.  365 ;  and  Snelling  v.  Thomas, 
1874,  L.  R.  17  Eq.  303).  Lord  St.  Leonards's  view  of  the  result  of  the 
authorities  as  to  parol  variation  is  stated  in  Sugden,  Vendors  and 
Purchasers,  14th  ed.,  at  p.  165. 

In  the  Court  of  Chancery,  a  curious  distinction  appears  to  have  been 
made  by  some  eminent  judges,  who  held  that,  although  the  defendant 
to  a  suit  for  specific  performance  of  a  written  contract  might  adduce 
parol  evidence  in  variation  of  the  contract,  the  plaintiff  in  such  a  suit 
could  not,  at  any  rate  where  there  had  been  no  part  performance,  go 
into  parol  evidence  for  the  purpose  of  enforcing  the  contract  with  a 
variation  {Woollam  v.  Beam,  1802,  7  Ves.  Jun.  211b;  32  E.  R.  87; 
6  R.  R.  113;  Marquis  Townshend  v.  Stangroom,  1801,  6  Ves.  Jun.  328;    . 
31  E.  R.  1076 ;  5  R.  R.  312).     But  on  the  coming  into  operation  of  sec.   / 
24,  subs.  7,  of  the  Judicature  Act,  1873,  such  a  distinction  became  / 
untenable;  and  it  has  accordingly  been  held  that,  where  the  Statute  of/ 
Frauds  does  not  create  a  bar,  a  plaintiff  may,  in  one  and  the  same 
action,  obtain,  upon  parol  evidence  of  mistake,  rectification  of  a  written  1 
contract,  and  specific  performance  of  the  contract  as  rectified  {Olleyy^ 
Fisli££.  1886.  34  Ch.  D.  367).  "^ 

It  may  here  be  added  that,  where  an  alleged  contract  in  writing  is 
sued  on,  it  is  open  to  the  defendant  to  show  by  parol  evidence  that,./ 
notwithstanding  the  writing,  there  was  no  contract  {Pattle  v.  Hornibrooky, 
[1897]  1  Ch.  25). 


SPECIFIC  PERFORMANCE  581 


JUDGMENT — COSTS. 


If,  at  the  trial,  the  plaintiff  succeeds,  the  form  of  the  judgment 
varies,  of  course,  according  to  the  subject-matter  of  the  contract  sued 
on,  and  to  the  position  under  it  of  the  party  suing  relatively  to  the 
party  sued  (see  North  v.  Fercival,  [1898]  2  Ch.,  at  p.  134).  A  variety 
of  forms  of  judgment  is  collected  in  Seton,  6th  ed.,  pp.  2206  et  seq.  In 
a  simple  case  of  a  contract  for  sale  of  land,  where  the  title  has  not  been 
accepted,  admitted,  or  established  at  or  before  the  trial,  the  judgment, 
if  the  vendor  is  plaintiff,  begins  with  a  declaration  and  order  that  the 
contract  ought  to  be  specifically  performed  in  case  a  good  title  can  he 
made  to  the  property  comprised  in  it,  and  goes  on  to  refer  the  action  to 
the  chambers  of  the  judge  for  inquiry  as  to  whether  a  good  title  can  be 
made,  and,  if  so,  when  it  was  first  shown  that  such  a  title  could  be 
made,  and  adjourns  the  further  consideration  of  the  action  until  after 
the  Master's  certificate  of  the  result  of  the  inquiry.  If,  in  such  a  case, 
the  purchaser  is  plaintiff,  the  form  of  judgment  will  be  the  same,  except 
that  the  words  italicised  above  will  be  omitted.  Very  often  the  title  is 
accepted,  admitted  (by  default  in  pleading  or  otherwise),  or  established, 
before  or  at  the  trial.  In  such  a  case,  of  course,  no  inquiry  as  to  title 
is  requisite  (see  Soper  v.  Arnold,  1889,  14  App.  Cas.,  at  pp.  434,  436); 
the  judgment  provides  for  the  ascertainment  of  the  amounts  for  which 
the  vendor  is  accountable  in  respect  of  rents,  the  purchaser  in  respect 
of  interest  on  unpaid  purchase-money,  and  the  unsuccessful  party  in 
respect  of  costs  of  action,  and  directs  the  vendor  to  convey  the  property 
to  the  purchaser,  against  payment  by  the  latter  of  the  total  amount  due 
from  him,  after  adjustment  and  set-off  of  the  several  amounts  for  which 
the  parties  respectively  are  accountable  to  one  another  in  respect  of 
purchase-money,  rents,  interest,  and  costs.  Where  the  property  is 
leasehold,  the  judgment  may  direct  the  purchaser  to  execute  a  proper 
duplicate  conveyance  pursuant  to  a  provision  in  the  contract  to  that 
effect.  The  judgment  at  the  trial  may  also,  in  a  suitable  case,  contain 
a  declaration  of  the  vendor's  lien  on  the  property  sold  for  unpaid  pur- 
chase-money, interest,  and  costs,  and  a  reservation  to  him  of  liberty  to 
apply  to  the  Court  to  enforce  the  lien ;  or  an  inquiry  as  to,  or  assess- 
ment of,  damages  sustained  by  the  plaintiff  by  reason  of  the  defendant 
not  having  performed  the  contract;  or  provisions  for  compensation 
being  given,  or  an  abatement  of  the  purchase-money  being  made,  in 
respect  of  defect  of  title  or  deficiency  of  estate.  In  a  purchaser's  action 
an  inquiry  on  the  footing  of  wilful  default  as  to  rents  for  which  the 
vendor  is  accountable  may,  under  special  circumstances,  be  directed 
{Malone  v.  Henshaw,  1891,  29  L.  R.  Ir.,  at  p.  358). 

Where  the  contract  sued  on  is  an  agreement  for  a  lease,  the 
judgment  usually  directs  the  parties  to  execute  respectively  a  lease 
and  counterpart  lease  of  the  property  according  to  the  agreement; 
where  it  is  a  contract  for  transfer  of  shares,  it  is  by  the  judgment 
ordered  that  the  vendor  and  all  proper  parties  execute  a  deed  of 
transfer  of  the  shares  to  the  purchaser,  and  that  the  latter  concur  in 
all  necessary  and  proper  steps  for  causing  the  shares  to  be  duly  regis- 
tered in  his  name ;  and  the  purchaser  is  declared  liable  to  indemnify 
the  vendor  against  calls. 

Where  the  contract  is  for  the  surrender  of  a  lease  and  the  grant  of  a 
new  lease  to  the  same  lessee,  the  lessor  is  not  entitled  to  insist  on  having 
the  old  lease  delivered  up  to  him  {Knight  v.  Williams,  [1901]  1  Ch. 
256). 

/ 


582  SPECIFIC  PERFOEMANCE 

If  the  action  has  been  registered  as  a  lis  pendens,  and  is,  at  the  trial, 
dismissed,  the  judgment  may  include  an  order  vacating  the  registration 
{Baxter  v.  Middleton,  [1898]  1  Ch,  313).  And  where  a  vendor  plaintiff 
has  received  a  deposit,  and  his  action  is  dismissed  with  costs,  the  pur- 
chaser may  (provided  he  has  counterclaimed  for  it)  obtain  judgment  for 
return  of  his  deposit,  with  interest,  and  also  a  declaration  giving  him  a 
lien  on  the  vendor's  interest  in  the  subject-matter  of  the  contract  for 
the  amount  of  the  deposit, interest, and  costs  (see  Levy  v.  Stogdon,\l^'^d,'\ 
1  Ch.,  at  p.  485 ;  and  cp.  Kitton  v.  Hewett,  [1904]  W.  K  21). 

As  to  costs,  see  the  Supreme  Court  of  Judicature  Act,  1890,  s.  5,  and 
Order  65 ;  also  Seton,  6th  ed.,  pp.  2237,  2258 ;  Morgan  and  Wurtzburg 
on  Costs  in  the  Chancery  Division,  pp.  250-264 ;  Dyas  v.  Staffmni,  1882, 
9  L.  E.  Ir.,  at  p.  529  ;  and  infra,  p.  584. 

DEPOSIT. 

Where,  under  a  contract  for  sale,  the  purchaser  pays  a  deposit,  the 
deposit  serves  two  purposes ;  if  the  purchase  is  completed,  it  goes  in  part- 
payment  of  the  purchase-money ;  but  its  primary  purpose  is  to  serve  as 
a  guarantee  that  the  purchaser  means  business  (Soper  v.  Arnold,  1889, 
14  App.  Cas.,  at  p.  435). 

If  the  contract  goes  off  by  reason  of  default  on  the  part  of  the  vendor,  / 
or  without  any  default  on  the  part  of  the  purchaser,  the  latter  is  entitled  ( 
to  have  back  his  deposit,  with  interest,  and  to  a  lien  on  the  property  for 
the  deposit,  interest,  and  costs  (Poicell  v.  Marshall  Parkes  &  Co.,  [1899] 
1  Q.  B.  710 ;   Whithread  &  Co.  v.  Watt,  [1902]  1  Ch.  835,  841 ;  Kitton  v. 
Hewett,  [1904]  W.  N.  21).     And  the  Court  has  jurisdiction  on  a  summons 
under  the  Vendor  and  Purchaser  Act,  1874,  to  make  an  order  for  the 
rescission  of  the  contract  and  the  return  of  the  deposit  with  interest  and 
costs  {In  re  Walker,  etc.,  [1901]  2  Ch.  383 ;  cp.  Carlish  v.  Salt,  [1906]  1  Ch. 
335).    If,  on  the  other  hand,  the  contract  goes  off  in  consequence  of  some  I 
default  on  the  purchaser's  part,  the  vendor  is  generally  entitled  to  forfeit  ii 
and  retain  the  deposit  (Ex  parte  Barrcll,  1875,  L.  E.  10  Ch.  512,  514;  j 
Howe  V.  Smith,  1884,  27  Ch,  D.  89 ;  distinguish  Jackson  v.  De  Kadich, 
[1904]  W.  N.  168). 

INTEREST   AND   RENTS. 

Where,  in  a  contract  for  the  sale  of  land,  there  is  no  stipulation  with 
respect  to  interest  on  unpaid  purchase-money  or  the  rents  of  the  property 
sold,  the  general  rule  is  that,  as  from  the  time  fixed  for  completion,  or 
at  which  the  purchaser  takes  or  ought  to  take  possession,  he  is  entitled 
to  the  rents,  and  the  vendor  has  a  correlative  right  to  interest  on  unpaid 
purchase-money  (see  Fletcher  v.  Lancashire,  etc.,  Ely.,  [1902]  1  Ch.,  at  p. 
908;  Halkett  v.  Earl  of  Dudley,  [1907]  1  Ch.  590,  606  (interest  payable 
from  the  date  when  the  Master  certified  that  title  was  first  shown) ;  and, 
for  cases  in  which  the  Court  gives  the  vendor  no  interest,  Paton  v.  Rogers, 
1822,  6  Madd.,  at  p.  157 ;  Esdaile  v.  Stephenson,  1822,  1  Sim.  &  St.,  at 
p.  123 ;  Birch  v.  Joy,  1852,  3  H.  L.  C,  at  pp.  590,  591 ;  cp.,  too,  Plews  v. 
Samuel,  [1904]  1  Ch.  464).  Often,  however,  there  is  an  express  stipula- 
tion to  the  effect  that  if,  from  any  cause  whatever,  other  than  wilful 
default  on  the  part  of  the  vendor,  completion  is  delayed  beyond  a  specified 
date,  interest  shall  be  paid  by  the  purchaser  from  that  date  until  actual 
completion.  As  to  the  operation  of  such  a  stipulation,  and  the  meaning 
of  "  wilful  default "  in  it,  see  Williams  v.  Glenton,  1866,  L.  E.  1  Ch.  200  ; 


SPECIFIC  PERFORMANCE  583 

In  re  Woods,  etc.,  [1898]  2  Ch.,  at  p.  213 ;  Bennett  v.  Stone,  [1902]  1  Ch. 
226  ;  [1903]  1  Ch.  509  ;  and  In  re  Postmaster-General  and  Colgate's  Con- 
tract, [1906]  1  Ir.  R.  287,  477;  also,  as  to  the  eftect  of  a  purchaser's 
setting  apart  at  a  bank,  or  investing,  unpaid  purchase-money,  and  giving 
notice  to  the  vendor  of  the  appropriation,  see  In  re  Riley,  etc.,  1886,  34 
Ch.  D.  386;  Kershaw  v.  Kershaw,  1869,  ]..  R.  9  Eq.  56. 

PROCEEDINGS   AFTER  JUDGMENT. 

Inquiry  as  to  Title. — Though  this  inquiry  has  so  commonly  been 
directed  at  the  trial  that  it  has  been  considered  convenient  to  advert  to 
it  under  the  head  of  Proceedings  after  Judgment,  it  should  be  borne  in 
mind  that  an  order  for  such  an  inquiry  is  obtainable  also,  in  an  action 
for  specific  performance,  on  interlocutory  application,  before  trial,  under 
Order  33,  r.  2,  or  by  means  of  an  application  under  Order  32,  r.  6  {e.g. 
Camherwell,  etc..  Society  v.  Holloway,  1879,  13  Ch.  D.,  at  p.  758);  and 
where  the  only  question  is  that  of  title,  the  earliest  practicable  oppor- 
tunity of  applying  for  the  inquiry  ought  to  be  embraced  {Phillipson  v. 
Gibbon,  1871,  L.  R.  6  Ch.,  at  p.  435).  Indeed,  in  cases  where  title  only 
is  in  question,  an  originating  summons  under  the  Vendor  and  Purchaser 
Act,  1874,  will  generally  answer  all  purposes ;  for  whatever  can  be  done 
in  chambers  upon  a  reference  for  inquiry  as  to  title  under  a  judgment 
in  an  action  where  the  contract  has  been  accepted,  admitted,  or  estab- 
lished at  or  before  trial,  can  also  be  done  upon  proceedings  under  the 
last-mentioned  Act  {In  re  Burroughs,  Lynn,  and  Sexton,  1877,  L.  R.  5  Ch., 
at  p.  604 ;  see,  too,  Thompson  v.  JRinqer,  1881,  29  W.  R.  520 ;  and  In  re 
Hughes  and  Ashley,  [1900]  2  Ch.  595). 

A  vendor  may,  if  he  likes,  stipulate  for  the  sale  of  an  estate  with 
such  title  only  as  he  happens  to  have  {Freme  v.  Wright,  1819,  4  Madd., 
at  p.  365) ;  and  if  he  has  done  so,  making  the  stipulation  clear  to  the 
purchaser  {Southhy  v.  Hutt,  1837,  2  Myl.  &  Cr.,  at  p.  212),  there  is  no 
room  for  any  inquiry  as  to  title.  Nor,  again,  will  inquiry  as  to  title  be 
directed  if  it  appears  that  the  purchaser  has  expressly  {e.g.  by  admission 
of  the  title  in  the  pleadings),  or  impliedly  {e.g.  by  some  unequivocal  act 
of  ownership),  waived  his  right  to  the  inquiry,  or  where  the  only  point 
or  points  in  dispute  upon  the  title  is  or  are  argued  and  decided  at  the 
trial.  Where  inquiry  in  the  common  form  {supra,  p.  581)  is  directed, 
"  a  good  title  "  means  a  good  title  according  to  the  contract  {  Upperton  v. 
Nicholson,  1871,  L.  R.  6  Ch.,  at  p.  442 ;  and  see,  for  an  instance.  In  re 
Baker  and  Selmons  Contract,  [1907]  1  Ch.  238);  and  accordingly,  in 
making  the  inquiry,  regard  is  had  to  any  stipulations  in  the  contract  by 
which  the  purchaser's  ordinary  legal  right  to  a  good  title  may  have  been 
curtailed.  Of  such  stipulations  there  are  countless  varieties.  Two  forms 
of  common  occurrence  it  may  be  useful  to  notice  particularly,  viz. — (i.)  A 
stipulation  to  the  efi'ect  that  the  purchaser  is  not  to  require  the  vendor 
to  prove  the  title,  or  some  specified  part  of  it ;  in  which  case  the  pur- 
chaser is  not  precluded  from  showing  aliunde  that  the  title  is  defective ; 
and  (ii.)  a  stipulation  to  the  effect  that  the  title,  or  some  specified  part 
of  it,  is  not  to  be  inquired  into ;  in  which  case  the  purchaser  is  pre- 
cluded from  making  any  inquiry  whatsoever  (see  In  re  National 
Provincial  Bank  of  England  and  Marsh,  [1895]  1  Ch.  190,  and  the 
cases  there  reviewed ;  also  In  re  Scott  &  Alvarez,  ibid.  596,  and  [1895] 
2  Ch.  603). 

The  general  principles  applicable  to  such  restrictive  stipulations  are 


584  SPECIFIC  PERFORMANCE 

that  they  are  to  be  construed  strictly,  and  that  effect  will  be  given  to 
them  if  clear,  honest,  and  fair,  but  refused  if  they  are  misleading  or 
otherwise  unfair  (see  In  re  Banister,  1879,  12  Ch.  D.  131,  136,  142, 
143 ;  Hopkinson  v.  Chamberlain,  [1908]  1  Ch.  853). 

Affidavit  evidence  as  to  matters  of  fact  is  admissible  on  the  inquiry 
{In  re  Burrotighs,  etc.,  ubi  supra) ;  and  a  vendor  is  in  time,  as  regards 
making  out  his  title,  if  he  makes  a  good  title  according  to  the  contract 
before  the  signing  of  the  Master's  certificate  {Jenkins  v.  Hiles,  1802, 
6  Ves.  Jun.,  at  p.  655 ;  31  E.  R.  1242 ;  6  R.  R.  14),  or,  it  is  conceived,  in 
the  case  of  a  vendor  and  purchaser  summons,  before  the  evidence  is 
closed.  As  to  the  difference  between  shovring  and  making  a  title,  see 
Parr  v.  Lovegrove,  1857,  4  Drew.,  at  p.  176. 

Unless  the  certificate  is  varied  on  a  proper  application  for  that  pur- 
pose, the  Court,  on  the  subsequent  hearing,  will  generally  direct  specific 
performance,  or  dismiss  the  action,  according  as  the  certificate  is  in 
favour  of  or  against  the  title.  In  Kitton  v.  Hewett,  [1904]  W.  N.  21, 
the  certificate  being  against  the  title,  the  purchaser  (defendant)  was 
held  entitled  to  a  lien  for  his  deposit,  with  interest  and  costs  of  action, 
and  also  his  costs  of  investigating  the  title.  But  where  the  certificate 
is  against  the  title,  or,  being  in  favour  of  it,  is  varied,  the  vendor  is 
sometimes  allowed  a  further  opportunity  of  curing  the  defect  {Coffin  v. 
Cooper,  1807,  14  Ves.  Jan.  205;  33  E.  R.  499;  9  R.  R.  274;  Fortman 
v.  MUl,  1831,  1  Russ.  &  M.  696;  39  E.  R.  267;  Curling  v.  Flight, 
1848,  2  Ph.  613 ;  41  E.  R.  1080 ;  78  R.  R.  218). 

As  to  the  costs  up  to  the  time  when  a  good  title  is  shown,  the 
conclusion  to  be  drawn  from  a  comparison  of  the  modern  authorities 
is,  it  is  conceived,  that  these,  like  other  costs  of  specific  performance 
actions,  are  entirely  in  the  discretion  of  the  Court  {Phillipson  v.  Gibbon, 
1871,  L.  R,  6  Ch.,  at  p.  434,  and  per  Cotton,  L.J.,  in  Games  v.  Bonnor, 
1884,  33  W.  R.,  at  p.  66;  but  see  Halkett  v.  Earl  of  Dudley,  [1907] 
1  Ch.,  at  p.  607). 

Inquiry  as  to  title  is  not  confined  to  cases  relating  to  real  or  lease- 
hold property.  It  has,  for  instance,  been  directed  where  shares  in 
mining  companies  were  the  subject-matter  of  the  contract  {Curling  v. 
Flight,  ubi  supra). 

Non-compliance  with  Judgment. — Where,  by  a  judgment,  the  defen- 
dant has  been  ordered  to  perform  specifically  his  part  of  a  contract,  and 
he  has  made  default  in  doing  so,  there  are  several  remedies,  of  some 
or  one  of  which,  according  to  the  circumstances  of  the  particular  case, 
the  plaintiff  may  avail  himself  by  means  of  application  in  the  action — 

(i.)  He  may  obtain  an  order  fixing  a  time  and  place  at  which,  or 
a  limited  period  within  which,  the  judgment  is  to  be  complied  with 
by  the  defendant,  and,  in  default  of  compliance  with  the  order,  he 
may  proceed  to  enforce  it  by  writ  oi  fieri  facias,  or  elegit,  if  the  default 
be  in  payment  of  money,  and,  if  otherwise,  by  writ  of  sequestration 
or  attachment  {Robinson  v.  Galland,  1889,  37  W.  R.  396  ;  Jessop  v.  Smyth, 
[1895]  1  I.  R.,  at  p.  510 ;  Grace  v.  Baynton,  1877,  25  W.  R.  506 ;  Order 
42,  rr.  3,  6,  8,  17,  24;  Order  43,  r.  6 ;  Order  44;  see,  too.  Bell  v.  Denver, 
1886,  54  L.  T.  N.  S.  729 ;  34  W.  R.  638). 

(ii.)  He  may  avail  himself  of  the  provisions  of  Order  42,  r.  30,  by 
which  it  is  provided  that,  if  a  judgment  for  the  specific  performance 
of  any  contract  be  not  complied  with,  the  Court  or  a  judge  may  direct 
an  act  required  to  be  done  to  be  done,  so  far  as  practicaljle,  by  the  party 
who  has  obtained  the  judgment,  or  by  some  other  person  appointed  by 


SPINNING-HOUSE  585 

the  Court  or  judge,  at  the  cost  of  the  disobedient  party  (see  Mortimer  v. 
Wilson,  1885,  33  W.  R  927). 

(iii.)  If,  being  a  vendor  of  land,  he  has  been  declared  entitled  to  a 
vendor's  lien,  he  may  obtain  an  order  for  enforcement  of  his  lien  by 
sale  of  the  land,  with,  in  a  proper  case,  the  appointment  meanwhile  of 
a  receiver;  and  further,  if  the  land  be  unsaleable,  he  may  in  some  cases 
{e.g.  AUgoocl  v,  Merryhent,  etc.,  Bly.  Co.,  1886,  33  Ch.  D.  571)  obtain  an 
injunction  restraining  the  defendant  from  continuing  to  use  the  land, 
and  an  order  that  the  plaintiff  be  put  into  possession  of  it. 

(iv.)  If  he  be  a  purchaser  of  land,  he  may  obtain  an  order  vesting 
the  defaulter's  estate  in  him,  or  appointing  someone  to  execute  a  con- 
veyance of  it  to  him  (Trustee  Act,  1893,  ss.  26,  31,  32-34 ;  Judicature 
Act,  1884,  s.  14). 

(v.)  He  may,  whether  there  has  been  a  declaration  of  lien  or  not 
{Baker  v.  Williams,  1893,  41  W.  R.  375),  obtain,  on  motion,  an  order 
rescinding  the  contract  and  staying  further  proceedings  in  the  action 
{Henty  v.  Schroder,  187 9, 12  Ch.  D.  666),  except  proceedings  for  recovery 
of  the  costs  of  the  action  and  the  motion  {Olde  v.  Olde,  [1904]  1  Ch.  35 ; 
see,  too,  Jackson  v.  Be  Kadich,  [1904]  W.  N.  168  ;  and  Griffiths  v.  Vezey, 
[1906]  1  Ch.  796,  where  no  order  for  rescission  was  made,  but  the  pur- 
chaser's deposit  was  declared  forfeited,  and  a  stay  of  proceedings  was 
directed). 

[Authorities. — Fry  on  Specific  Performance,  4th  ed.,  1903;  Story's 
Equity  Jurisprudence,  2nd  English  ed,,  1892  ;  Selden  Society's  Select  Gases 
in  Ghancery,  vol.  x.,  1896;  Gilbert's  Lex  Prcetoria,  1758;  White  and 
Tudor's  Equity  Cases,  vol.  ii.,  tit.  "  Specific  Performance,"  7th  ed.,  1897 ; 
Sugden's  Vendors  and  Purchasers,  14th  ed.,  1862 ;  Dart's  Vendors  and 
Purchasers,  7th  ed.,  1905 ;  articles  on  "  The  Defence  of  Lack  of  Mutuality," 
published  in  the  American  Law  Register  (University  of  Pennsylvania) 
for  May,  July,  August,  September,  and  October,  1901,  and  for  May, 
1902.] 

Speedy  Judgement. — See  Summary  Judgment  under 
Order  14. 

Sphere  of  Influence. — See  Protectorate. 

Spikes  in  Wall. — Spikes  in  a  wall  were  held  to  amount  to 
a  nuisance  in  Fenna  v.  Clare,  [1895]  1  Q.  B.  199. 

Spinnings  -  house. — A  house  of  correction  in  Cambridge, 
used  by  the  authorities  of  the  University  of  Cambridge  for  the  detention 
of  women  of  light  character  consorting  with  or  soliciting  members  of  the 
university  in  staiu  -pupillari.  The  legality  of  detention  therein  was 
exhaustively  discussed  in  Kemp  v.  Nevill,  1861,  10  C.  B  N.  S.  523. 

The  prison  is  said  to  have  been  at  that  date  recognised  by  the  Crown, 
and  inspected  as  a  franchise  prison.  Its  use,  notwithstanding  the  Prison 
Acts  of  1865  and  1877,  continued  till  1891  {Ex  parte  Hopkins,  1891, 
17  Cox  C.  C.  444;  8  T.  L.  R  153). 

In  consequence  of  the  difficulties  of  administration  evidenced  by 
these  decisions,  the  university  jurisdiction  over  light  women,  resting 
on  a  charter  (43  Eliz.),  and  on  the  Statute  13  Eliz.  c.  29,  was  taken  away 
in  1894  (57  &  58  Vict.  c.  60,  ss.  4-12),  and  an  Act  (6  Geo.  iv.  c.  97,  s.  3) 
dealing  with  them,  which  till  then  applied  to  Oxford  University  only, 
was  extended  to  Cambridge  University. 

/ 


586  SPIRITS 

Spiri'tS. — Substances  containing  alcohol  and  other  spirit  are 
subject  to  legislation  from  three  points  of  view — 

(1)  Protection  of  the  purchaser  from  adulteration  (see  Adultera- 
tion). 

(2)  Protection  of  the  public  from  risk  of  fire  or  explosion  (see 
Explosives). 

(3)  Protection  of  the  revenues  of  customs  and  excise. 

The  meaning  of  the  word  "  spirits "  is  not  defined  in  the  Customs 
Management  or  Eevenue  or  Finance  Acts ;  but  is  to  some  extent 
defined  in  sec.  3  of  the  Spirits  Act,  1880,  43  &  44  Vict.  c.  24,  and  in  the 
Refreshment  House  Act,  1860,  23  &  24  Vict.  c.  27,  s.  21,  is  stated  to 
include  a  fermented  liquor  containing  more  than  40  per  cent,  proof 
spirit.  What  is  or  is  not  spirit  in  practice  depends  on  Sykes's  hydro- 
meter or  the  appliances  substituted  for  it  under  sec.  4  of  the  Finance 
Act,  1907,  7  Edw.  vii.  c.  13. 

As  to  the  duties  of  customs  and  excise  on  spirits  and  the  regulation 
of  their  manufacture  and  export  (up  to  1906),  vide  Excise,  Vol.  V. 
p.  458.  Provision  is  made  by  the  Finance  Act,  1908,  8  Edw.  vii.  c.  16, 
s.  4,  for  transferring  to  the  Commissioners  of  Customs  the  management 
of  excise  duties,  including  those  on  spirits. 

The  additional  customs  and  excise  duties  imposed  in  1900  were  con- 
tinued in  1907  (7  Edw.  vn.  c.  13,  ss.  2,  3). 

Provision  is  made  by  sec.  4  of  the  Finance  Act,  1907,  7  Edw.  vn.  c.  13, 
to  enable  the  Commissioners  of  Customs  and  Inland  Revenue  to  join  in 
making  regulations  (to  be  gazetted)  authorising  the  use  of  any  means 
described  in  the  regulations  for  ascertaining  for  any  purpose  the 
strength  or  weight  of  spirits.  The  means  thus  authorised  are  to  be 
substituted  in  existing  enactments  for  Sykes's  hydrometer. 

Spirits,  IVIcthylatcd.— See  Excise,  Vol.  V.  p.  462. 

Spiritual,  Corporations. — See  Ecclesiastical  Cor- 
porations. 

Spiritualism. — l.  Persons  who  profess  to  communicate  with 
the  dead  by  means  of  knocks,  writing,  or  the  like  have  been  held  to  fall 
within  the  penalties  imposed  by  sec.  4  of  the  Vagrancy  Act,  1824, 
5  Geo.  IV.  c.  83,  upon  fortune-telling,  palmistry,  and  the  like  (Monck 
V.  Hilton,  1877,  2  Ex.  D.  268 ;  In  re  Slack,  1878,  36  L.  T.  402).  This 
does  not  preclude  their  prosecution  for  obtaining  property  by  False 
Pretences. 

2.  Gifts  or  bequests  of  property  made  under  the  influence  of  persons 
professing  the  occult  powers  of  spiritualists  may  be  avoided  as  procured 
by  Undue  Influence  (see  Lyon  v.  Koine,  1868,  L.  R.  6  Eq.  655). 

Spiritual,  Lords. — See  Estates  of  the  Realm;  House  of 
Lords. 

Spoliation. — An  injury  done  by  one  incumbent  to  another  in 
taking  the  fruits  of  his  benefice  under  a  pretended  title.  When  the  right 
of  the  patron  does  not  come  in  question,  the  injury  can  be  remedied  in 
the  Ecclesiastical  Courts ;  but  if  such  right  does  come  in  question,  the 
matter  must  be  dealt  with  in  the  Civil  Courts  (3  Steph.  Com.,  337). 

Sponsions. — In  international  law  sponsions  are  compacts  or 


S.  S.,  COLLAE  OF  .       587 

engagements  concluded  in  the  name  of  States  by  their  officers  without 
proper  authority,  or  in  excess  of  the  authority  they  may  possess.  Such 
acts  must  be  confirmed  by  express  or  tacit  ratification  to  make  them 
binding  (Halleck,  International  Law,  3rd  ed.,  vol.  i.  277). 

Spring'  Guns. — 1.  The  use  of  these,  or  similar  contrivances, 
on  private  property  is  punishable  under  sec.  31  of  the  Offences  against 
the  Person  Act,  1861,  where  they  are  calculated  to  destroy  human  life, 
or  calculated  or  intended  to  cause  grievous  bodily  harm.  The  prohibition 
and  penalty  does  not  extend  to  dog-spears  {Jardin  v.  Cinimp,  1841,  8  Mee. 
&  W.  782),  or  guns  or  traps  to  destroy  vermin,  nor  to  spring  guns,  etc., 
set  in  a  dwelling-house  at  night  for  its  protection  (see  Bodily  Haem  ; 
Game  Laws). 

2.  Persons  injured  by  spring  guns  illegally  set  appear  to  have  an 
action  for  injuries  sustained  (where  they  have  no  notice  of  these  being 
set),  although  they  would  not  have  been  injured  if  they  had  not  tres- 
passed. See  Beven  on  Negligence,  3rd  ed.,  pp.  425  et  seq.,  where  the 
decisions  are  discussed,  of  which  the  principal  is  Bird  v.  Holbrooh,  1828, 
4  Bing.  628 ;  29  R  R.  657). 

Springing'  Uses. — Limitations  of  uses  on  contingency,  etc. 
See  ExECUTOKY  Interests;  Uses. 

Spy. — See  Wak. 

Square  Mile. — In  sec.  31  of  the  Lands  Act  Amendment  Act, 
1875,  the  expression  "  square  mile  "  and  "  miles  square  "  were  held  to 
mean  areas  of  those  dimensions,  not  areas  geometrically  square  {Robertson 
v.  Day,  1879,  5  App.  Gas.  63). 

Sq  u  i  bs .  — See  Fireworks. 

S.  S.,  Collar  of.— The  collar  of  S.  S.  is  a  symbol  of  office 
which  certain  functionaries  are  privileged  to  wear  upon  State  occasions 
as  part  of  their  official  costume  or  insignia.  The  chief  persons  who  in 
modern  times  have  possessed  this  privilege  have  been  the  Lord  Chief- 
Justice  of  England,  the  Lord  Chief-Justice  of  the  Common  Pleas,  and 
the  Lord  Chief- Baron  of  the  Exchequer;  now  the  Lord  Chief-Justice 
of  England  is  the  only  one  of  His  Majesty's  judges  who  has  the  right 
to  wear  it.  Other  official  personages  who  wear  it  are  the  officers  of  the 
Herald's  College,  with  the  exception  of  the  pursuivants.  The  Lord 
Mayor  of  London,  however,  wears,  by  virtue  of  his  office,  a  collar  which 
is  very  similar,  and  is  described  as  follows : — 

It  is  composed  of  twenty-eight  S.  S.,  fourteen  roses,  thirteen  knots,  and 
measures  six  by  four  inches.  The  ends  of  the  chain  are  joined  by  the  port- 
cullis, from  the  points  of  which,  suspended  by  a  ring  of  diamonds,  hangs  the 
jewel  containing  the  city  arms,  and  encircled  by  a  border  of  S.  S.  in  gold  and 
rosettes  of  diamonds  set  in  silver. 

The  collar  of  S.  S.  worn  by  the  other  persons  above  mentioned  is 
thus  described : — 

The  form  of  appendages  of  the  collar  underwent  many  changes.  It  was 
at  first  a  small  collar  fitting  closely  to  the  neck,  'with  the  letters  S.  S.  placed 

/ 


588  STAGE  CARRIAGE;  COACH 

at  equal  distances  on  a  stiff  band  of  dark  colour,  the  ends  of  which  bent  out- 
wardly and  were  united  by  a  chain.  Pendent  jewelled  rings  were  then 
added,  and  afterwards  Henry  the  Seventh's  Beaufort  badge  of  the  portcullis 
with  the  rose ;  and  the  form  and  material  were  at  length  increased  in  size 
and  value  by  the  introduction  of  a  garter  knot  between  the  letters,  then  the 
collar  became  the  gorgeous  ornament  which  now  decorates  the  chiefs  of 
the  Courts.  It  consists  of  twenty-eight  of  the  letters  and  twenty-seven 
of  the  knots,  besides  the  two  portcullises  and  the  rose,  the  diameter  of 
the  latter  being  about  an  inch  and  three-quarters,  and  the  rest  of  the 
chain  in  proportion.  The  weight  of  the  whole  is  about  four  pounds  of 
gold. 

The  only  known  instance  of  a  Chancellor  wearing  the  ornament  is 
found  in  the  portrait  of  Sir  Thomas  More  in  the  reign  of  Henry  viii. 

The  collars  worn  by  the  chiefs  of  the  Courts  became  office-looms. 
That  of  the  Common  Pleas  descended  from  Sir  Edward  Coke,  and  con- 
tinued until  the  amalgamation  of  the  Courts.  The  collar  worn  in  the 
King's  Bench  could  be  traced  to  Sir  Matthew  Hale,  Chief  Justice  in 
1671,  and  was  transmitted  on  a  customary  payment  of  £100.  Lord 
Ellenborough  in  1818  retained  it  on  his  retirement,  and  a  new  one  was 
provided.  A  new  one  was  provided  which  ultimately  passed  to  Lord 
Denman.  On  his  retirement  in  1850  his  successor  did  not  take  it,  and 
it  was  transferred  to  the  Corporation  of  Derby.  Lord  Campbell  retained 
his  on  becoming  Chancellor,  and  his  successor  in  1859,  Sir  Alexander 
Cockburn,  provided  a  new  one.  So  that  the  tradition  of  the  collar  as  an 
office-loom  had  died  out  in  this  Court.  Sir  Alexander,  however,  left  his 
collar  to  be  held  by  his  successors  as  an  office-loom,  and  this  is  the  one 
now  worn  by  the  Lord  Chief-Justice  {q.v.). 

The  tradition  also  died  out  in  the  Exchequer  before  the  abolition  of 
that  Court. 

[Authority. — Foss's  Judges  of  England.'] 

Stag^e  Carriage;    Coach.— The  proprietor  of  a  stage 

coach,  if  he  undertakes  for  reward  to  carry  goods  as  well  as  passengers, 
is  a  common  carrier  of  the  goods.  But  if  he  only  holds  himself  out  to 
carry  passengers,  the  fact  that  the  passengers  are  permitted  to  take 
luggage  with  them,  and  that  the  driver  of  the  coach  accepts  a  gratuity 
for  carrying  such  luggage,  does  not  render  the  proprietor  liable  as  a 
common  carrier,  if  he  makes  no  charge  for  the  carriage  of  the  luggage 
(Middleton  v.  Fowler,  1699, 1  Salk.  282 ;  Brooke  v.  Pickwick,  1827, 4  Bing. 
218).     As  to  the  liability  of  a  common  carrier,  see  Carrier. 

A  stage  coach  proprietor  is  not  liable  for  injury  caused  to  passengers 
by  the  breaking  down  or  overturning  of  the  coach,  in  the  absence  of  any 
default  or  negligence  on  his  part,  or  on  that  of  his  servants  {Crofts  v. 
Waterhouse,  1825,  3  Bing.  319;  28  R.  R.  631;  Aston  v.  Heaven,  1797, 
3  Esp.  533 ;  5  R.  R.  750;  Christie  v.  Griggs,  1809,  2  Camp.  79;  11  R.  R. 
666 ;  Bedhead  v.  Midland  Bly.,  1869,  L.  R.  4  Q.  B.  379,  where  the  older 
cases  dealing  with  coaches  are  discussed  by  the  C.  A.,  and  Hyman  v. 
Nye,  1881,  6  Q.  B.  D.  685).  But  he  is  bound  to  exercise  due  skill, 
and  all  possible  care  and  foresight,  to  provide  for  the  safe  conveyance 
of  passengers ;  and  it  is  his  duty  to  examine  the  coach  at  the  commence- 
ment of  every  journey,  in  order  to  ascertain  whether  there  are  any  defects 
rendering  it  insecure,  and  to  take  care  that  it  is  of  sufficient  strength  to 
carry  the  full  number  of  passengers  for  which  it  is  constructed  (Bremner 
V.  Williams,  1824, 1  Car.  &  P.  414 ;  28  R.  R.  782 ;  Israel  v.  Clark,  1803, 


STAIKCASE  589 

4  Esp.  259).  He  is  not,  however,  liable  if  an  accident  happens  in  con- 
sequence of  a  latent  defect  which  could  not  be  discovered  by  the  exercise 
of  reasonable  care  and  skill  {Christie  v.  Griggs,  1809,  2  Camp.  N.  P.  79 ; 
11  K.  E.  666 ;  and  see  Carrier,  Vol.  II.,  at  p.  587). 

The  driver  of  a  stage  coach  must  have  competent  skill  and  know  the 
road  (see  his  duties  described,  ante,  Vol.  IX.  p.  582,  sub  tit.  Negligent 
Driving). 

As  to  the  law  relating  to  hackney  carriages,  see  Cab. 

Stage  Plays. — See  Copyright  ;  Theatres. 

Staircase. — Urban  authorities  are  empowered  by  sec.  23  of  the 
Public  Health  Acts  Amendment  Act,  1890,  to  make  by-laws  dealing  with, 
inter  alia,  the  structure  of  staircases.  In  the  London  Building  Act,  1894, 
there  are  also  various  provisions  dealing  with  the  same  subject  (see  ss.  69, 
70,  74,  78-80). 

A  landlord  who  lets  an  unfurnished  house,  the  staircase  of  which  is  in 
an  unsafe  condition,  he  being  under  no  liability  to  keep  it  in  repair,  is  not 
liable  for  personal  injuries  sustained  by  a  person  in  consequence  of  the 
defective  state  of  the  staircase  {Lane  v.  Cox,  [1897]  1  Q.  B.  415 ;  see  also 
Russell  V.  Macknight,  1896,  24  Ct.  of  Sess..Cas.,  4th  Series,  118;  and  see 
Vol.  IX.  p.  567,  for  cases  where  the  landlord  is  liable  contractually  for 
repairs,  citing  Cavalier  v.  P&pe,  [1897]  1  Q.  B.  415,  and  other  cases). 
But  where  premises  are  let  in  separate  floors  (except  the  staircase, 
which  is  common  to  all  the  floors,  and  is  under  the  control  of  the 
landlord),  it  may  be  the  duty  of  the  landlord  to  keep  such  staircase 
in  a  state  of  repair,  and  he  will  be  liable  if  a  person  having  business 
with  any  of  the  tenants  is  injured  owing  to  any  defect  therein  {Miller 
v.  Hancock,  [1893]  2  Q.  B.  177).  Miller  v.  Hancock  was  distinguished 
in  Huggett  v.  Miers,  [1908]  2  K.  B.  278.  In  the  latter  case  the  plaintiff', 
a  servant  of  the  occupier  of  one  of  the  flats,  missed  his  way  in  the  dark 
and  met  with  an  accident.  The  defendant  was  the  landlord,  and  had 
not  leased  the  stairs.  There  was  no  agreement  as  to  the  lighting  of  the 
stairs.  The  Court  of  Appeal  held  that  the  defendant  was  not  liable, 
there  being  in  this  case  no  implied  undertaking  by  him  to  light  the 
stairs,  nor  any  implied  invitation  to  the  plaintiff  by  the  defendant  to 
use  the  stairs  in  the  dark.  For  the  principles  of  liability  in  these 
cases,  see  Negligence,  Vol.  IX.  p.  567.  For  a  case  where  a  railway 
company  were  liable  for  an  accident  due  to  a  slippery  staircase,  see 
Osborne  v.  L.  &  N.-W.  Ely.,  1888,  21  Q.  B.  D.  220  (discussed.  Vol.  IX. 
p.  579). 

The  extent  of  the  duty  to  exercise  care  which  a  defendant  owes  to  a 
plaintiff  whom  he  brings  on  to  a  staircase  or  other  structure  in  pursuance 
of  a  contract,  is  discussed  in  Francis  v.  Cockrell,  1870,  L.  R  5  Q.  B.  501 ; 
39  L.  J.  Q.  B.  291.  It  amounts  to  a  warranty  that  due  care  has  been 
exercised  in  the  construction  and  maintenance  of  the  structure,  i.e.  that 
it  is  reasonably  fit  for  its  purpose  "  so  far  as  human  care  and  skill  could 
make  it  so"  {ibid.,  per  Montague  Smith,  J.).  This  warranty  extends 
to  the  acts  or  omissions  of  an  independent  contractor  employed  by  the 
defendant  {I.e.),  but  does  not  insure  against  latent  defects  {ibid.). 

Where  there  is  no  contract  between  the  parties,  but  the  plaintiff" 
comes  on  invitation,  or  having  a  common  interest  with  the  defendant, 
the  duty  of  the  defendant  is  not  an  absolute  duty  to  prevent  danger, 
but  "  to  make  the  place  as  little  dangerous  as  such  a  place  could  reason- 

/ 


590  STAKEHOLDER 

ably  be"  {per  Willes,  J.,  in  iTidemaiir  v.  Dames,  1866,  L.  R.  1  C.  P.  288, 
S.  C.  affirmed,  L.  R.  2  C.  P.  311).  It  seems  that  the  measure  of  duty  is 
really  the  same  whether  it  arises  in  contract  or  tort  (see,  per  Bigham,  J., 
in  Marney  v.  Scott,  [1899]  1  Q.  B.  989,  990).  For  a  contention  that  the 
liability  in  tort  is  narrower,  and  does  not  extend  to  due  care  being 
exercised  by  an  independent  contractor,  see  Salmond's  Law  of  Torts, 
349,  351. 

Stakeholder  is  a  person  with  whom  a  deposit  is  made  to  hold 
on  behalf  of  such  one  or  more  of  the  parties  to  making  the  deposit  as 
may  establish  his  or  their  claim  to  it.  On  a  sale  by  auction,  the 
auctioneer  generally  {Edgell  v.  Day,  1865,  L.  R.  1  C.  P.  80 ;  Furtado  v. 
Lumley,  1890,  54  J.  P.  407),  and  the  solicitor  sometimes  ( Wiggins  v. 
Lord,  1841,  4  Beav.  30 ;  49  E.  R.  248 ;  55  R.  R.  5),  receives  the  deposit 
in  that  capacity.  Unless  otherwise  directed  by  both  parties,  the  stake- 
holder should  retain  the  deposit  in  his  own  hands  until  the  party  is 
ascertained  {Harington  v.  Hoggart,  1830,  1  Barn.  &  Adol,  577;  35  R.  R. 
382),  and  neither  party  can  alone  determine  his  right  to  do  so  {Marryat 
V.  Broderick,  1837,  2  Mee.  &  W.  369 ;  46  R.  R.  662 ;  Emenj  v.  Richards, 
1845,  14  Mee.  &  W.  728).  If  he  pay  it  over  to  either,  without  proper 
justification,  he  will  be  liable  for  it  to  the  other  {Peto  v.  Blades,  1814, 
5  Taun.  657;  15  R.  R.  609;  Gray  v.  Chitteridge,  1828,  1  Man.  &  R.  614; 
31  R.  R.  343 ;  Duncan  v.  Cafe,  1837,  2  Mee.  &  W.  244).  In  case  of 
dispute  he  may  interplead  if  either  party  threaten  him  with  an  action 
for  the  amount  (Harington  v.  Hoggart,  ubi  siipra ;  cp.  Interpleader). 
Where,  however,  he  seeks  to  retain  part  of  the  stake,  as  where  an 
auctioneer  claims  to  deduct  his  commission  before  paying  over  the 
deposit,  he  is  not  an  indifferent  stakeholder,  but  has  a  personal  interest 
to  uphold,  and  therefore  cannot  obtain  an  injunction  to  restrain  an  action 
against  himself  {Mitchell  v.  Hayne,  1824,  2  Sim.  &  St.  63 ;  57  E.  R.  268 ; 
25  R.  R.  151). 

As  soon  as  it  is  determined  which  of  the  parties  is  entitled  to  the 
deposit,  the  stakeholder  must  pay  it  over  to  that  party ;  if  he  refuse  to 
do  so  after  demand  made,  interest  may  be  recovered  after  notice  given 
{Qahy  v.  Driver,  1828,  2  Y.  &  J.  549 ;  31  R.  R.  629 ;  3  &  4  Will.  iv. 
c.  42,  s.  28). 

If  a  stakeholder  during  the  time  that  the  deposit  remains  in  his 
hands  chooses  to  invest  it,  he  does  so  at  his  own  risk ;  on  the  other 
hand,  he  is  entitled  to  any  profit  that  may  accrue  from  such  investment, 
nor  is  it  competent  for  one  of  the  parties  to  require  him  to  lay  out 
the  money  and  to  account  for  any  interest  that  may  be  made  thereon 
{Harington  v.  Hoggart,  ubi  supra).  The  equitable  principle,  that  an 
agent  who  acquires  any  profit  without  the  consent  of  the  principal  is 
deemed  to  do  so  for  the  benefit  of  the  principal  (see  Principal  and 
Agent),  seems  at  variance  with  this  decision  on  the  points  of  the  stake- 
holder making  a  profit.  Possibly  since  the  Judicature  Act  Harington 
V.  Hoggart  might  not  be  followed.  In  Crowther  v.  Elgood,  1887,  34  Ch.  D. 
691,  it  was  held  that  an  auctioneer  was  a  person  in  a  fiduciary  capacity 
within  the  meaning  of  sec.  4  of  the  Debtors'  Act,  1869,  and  liable  to 
attachment  on  failure  to  hand  over  money  in  his  hands.  If  both  parties 
direct  him  to  invest  the  money,  any  loss  that  may  result,  or  any  profit 
that  may  be  derived  from  such  investment,  will  fall  on,  or  accrue  to,  the 
party  ultimately  entitled  to  the  money  (see  judgments  in  Harington  v. 
Hoggart,  ubi  supra). 


STAMPS;  STAMP  DUTIES  591 

Notice  of  an  equitable  assignment  of  a  chose  in  action,  given  before 
the  fund  has  come  into  the  hands  of  a  stakeholder,  does  not  affect  the 
question  of  priorities  {Webster  v.  Webster,  1862,  31  Beav.  393;  54  E.  R. 
1191;  Somerset  v.  Cox,  1865,  33  Beav.  634;  55  E.  R.  514;  Buller  v. 
Plunkett,  1860,  1  John.  &  H.  441 ;  70  E.  R.  819 ;  Dart,  944). 

Where  a  document  is  held  by  a  stakeholder  between  the  defendant 
and  a  stranger  to  the  action,  he  must  be  subpoenaed  to  produce  it,  and 
parol  evidence  of  its  contents  is  not  admissible,  although  notice  to  pro- 
duce has  been  served  on  the  defendant,  for  the  stakeholder  is  not  the 
agent  of  the  latter,  and  the  latter  has  no  right  to  retain  the  document, 
although  he  might  be  entitled  to  inspect  it  {Parry  v.  3Imj,  1833,  1  Moo. 
&  R.  279 ;  42  R.  R.  792).  The  fact  that  the  stakeholder  has  received 
a  document  on  the  terms  that  it  shall  not  be  delivered  up  except  with 
the  consent  of  the  depositors,  does  not  excuse  production  where  it  is 
required  by  subposna  duces  tecum ;  and  the  Court  can  enforce  production 
by  attachment  {B.  v.  Daye,  [1908]  2  K.  B.  333). 

Where  a  person  acted  as  stakeholder  on  the  occasion  of  a  prize  fight 
which  ended  in  the  death  of  one  of  the  fighters,  but  took  no  other  part 
in  the  circumstances  of  the  fight  than  to  hold  the  stakes  and  afterwards 
hand  them  over  to  the  winner,  it  was  held  that  he  was  not  liable  to 
be  convicted  as  an  accessory  before  the  fact  to  the  manslaughter  {R.  v. 
Taylor,  1875,  L.  R.  2  C.  C.  R.  147). 

As  to  the  position  of  a  stakeholder  in  betting  and  wagering  transac- 
tions, see  Gaming  (and  Wagering),  Vol.  VI.  pp.  343  et  seq. 

Sta.!!. — The  continuous  occupation  of  a  portion  of  a  market  by  an 
erection  placed  there  for  the  purpose  of  selling  goods  is  a  "  stall "  for 
which  stallage  is  payable,  although  the  soil  be  not  interfered  with.  The 
question  of  what  constitutes  a  "  stall "  is  a  question  of  fact  {Great  Yar- 
mouth V.  Groom,  1862,  32  L.  J.  Ex.  74). 

Stallag'e. — See  Markets  and  Fairs. 

Stam  ps  ;  Stam  p  Duties.  — Stamp  duties  are  distinguished 
from  excise  and  taxes  mainly  by  the  mode  of  payment.  A  document 
must  exist,  or  be  created  for  the  purpose,  and  this  document  bears  either 
an  official  impression  or  adhesive  label  denoting  payment  of  duty.  The 
present  article  is  not,  however,  intended  to  include  those  stamp  duties 
which  are  generally  referred  to  under  more  specific  names  {e.g.  legacy, 
succession,  probate,  estate  duty),  but  to  give  in  outline  the  scope  of  those 
duties  on  deeds  and  other  instruments  which  were  imposed  by  the 
enactment,  in  the  main  a  consolidation  of  earlier  enactments,  and  known 
as  the  Stamp  Act,  1891,  54  &  55  Vict.  c.  39. 

Fiscal  enactments  scarcely  lend  themselves  to  generalisations  in  the 
way  of  rules  of  construction ;  they  have  been  said  to  be  jjositivi  juris. 
You  must  interpret  with  strict  regard  to  the  literal  meaning  of  the 
legislature's  language,  avoiding,  of  course,  absurdity.  Yet  one  or  two 
cardinal  principles  admit  of  elimination,  and  their  separate  statement 
tends  to  clearer  appreciation  of  the  incidence  of  the  charge. 

1.  Stamp  duty  is  charged  on  "instruments"  (s.  1);  but  no  one  need 
embody  a  transaction  in  an  instrument,  or  pay  the  duty,  which  would 
in  that  case  be  payable,  unless  a  special  provision  obliges  him  to  do  so. 
Such  special  provisions  exist  in  particular  cases ;  the  most  noteworthy 
being  sec.  12  of  the  Finance  Act,  1895,  58  Vict.  c.  16. 


592  STAMPS;  STAMP  DUTIES 

2.  Although  parties  may  dispense  with  au  instrument,  they  are  not 
at  liberty,  if  they  have  one,  to  conceal  facts  and  circumstances  on  which 
its  liability  depends  (s.  5).  This  section  must  in  efifect  be  read  as  a 
statutory  extension  (within  some  limits)  of  definitions  of  instruments 
given  or  implied  in  the  Act. 

3.  Duties  are  calculable  on  three  distinct  bases:  (a)  Fixed  duties 
imposed  on  documents  satisfying  a  given  description  or  definition 
(expressed  or  implied);  (b)  ad  valorem  duties,  dependent  either — (i.) 
on  the  amount  or  value  of  the  consideration  as  conveyance  on  sale  or 
lease,  or  (ii.)  on  the  effect  of  the  instrument  and  its  operation,  as  mort- 
gages, reconveyances,  awards,  bills  of  exchange,  settlements,  etc. 

4.  Duties  are  payable  according  to  the  facts  and  circumstances 
existing  at  the  date  of  the  instrument,  and  subsequent  circumstances 
do  not  affect  the  amount  of  rate  payable. 

5.  Where  the  document  is  within  the  terms  of  more  than  one  descrip- 
tion of  "  instrument "  the  Crown  is  entitled  to  the  higher  rate  of  duty 
{Speyer  Brothers  v.  Commissioners  of  1.  B.,  [1908]  A.  C.  92). 

6.  Instruments — {a)  Executed  in  any  part  of  the  United  Kingdom, 
or  (h)  relating,  wheresoever  executed — (i.)  to  any  property  situate  in 
the  United  Kingdom,  or  (ii.)  to  any  matter  or  thing  done  or  to  be  done 
in  any  part  of  the  United  Kingdom,  are  liable  to  duty  (s.  14  (4)).  See 
as  to  this  Commissioners  of  I.  B.  v.  Maple  &  Co.  (Paris),  Ltd.,  [1908] 
A.  C.  22.  Of  course  the  language  of  a  particular  charge  may  narrow  or 
extend  this  general  provision,  e.g.  sec.  59  (1),  and  Sched.  1,  tit.  "  Agree- 
ment ; "  for  extensions  see  Bill  and  Makketable  Security.  And  the 
Crown  is  bound  by  the  provisions  of  the  Stamp  Act,  except  where 
express  provision  is  made  to  the  contrary  (s.  119). 

7.  Stamps  are  either  impressed  or  adhesive,  and  either  kind  may  be 
appropriated.  The  rule  is  (ss.  2,  7)  that  duties  are  to  be  denoted  by 
impressed  stamps,  and  that  an  adhesive  stamp  can  only  be  used  where 
there  is  an  express  provision  enabling  it.  An  appropriated  stamp  is 
(s.  10)  only  to  be  used  on  the  particular  description  of  instrument  to 
which  it  is  appropriated,  and  instruments  of  the  given  description  are 
not  duly  stamped,  except  with  an  appropriated  stamp. 

With  regard  to  adhesive  stamps,  sees.  8  and  9  contain  special  pro- 
visions as  to  their  cancellation,  and  penalties  to  safeguard  cancellation 
and  prevent  fraudulent  practices. 

8.  The  peculiarity  of  the  Act  is  the  absence  of  any  stringent  sanction 
to  compel  payment  of  duty.  For  even  if  parties  do  embody  a  transac- 
tion in  a  written  instrument  (which,  as  explained  in  (1),  is  usually 
optional  with  them),  and  disclose,  as  required  by  sec.  5  of  the  Act,  the 
facts  and  circumstances  on  which  the  liability  to  duty  depends,  there 
is  in  general  no  liability  personally  enforceable  against  anyone  to  pay 
the  stamp  duty.  The  instrument  cannot  be  put  in  evidence  in  any 
civil  proceedings,  though  it  may  in  criminal  (s.  14  (1)  and  (4)),  unless 
duly  stamped ;  but  only  in  the  case  of  those  instruments  specified  in 
sec,  15,  subs,  (d),  is  there  a  fine  or  personal  penalty  recoverable  for 
failure  to  stamp;  and  this  fine  is  limited  to  £10,  whatever  the  duty  may 
be  (s.  15  (2)  (c)).  Penalties  there  are  payable  as  the  condition  on  which 
alone  the  stamping  of  an  instrument  (not  stamped  before  or  within  a 
certain  time  after  execution)  can  be  compelled  or  its  reception  in 
evidence  allowed. 

9.  In  general,  as  a  matter  of  law,  instruments  must  be  written  on 
stamped  material,  or  stamped  before  execution ;  if  presented  for  stamping 


STAMPS;  STAMP  DUTIES  593 

after  execution  a  penalty  is  in  strictness  exigible  in  addition  to  payment 
of  duty.  (The  regulations  of  the  Commissioners  concede  periods  of 
grace  for  stamping  without  penalty;  thirty  days  in  case  of  deeds,  and 
fourteen  in  case  of  agreements  under  hand  only ;  but  it  is  important  to 
distinguish  between  this — an  administrative  concession  revocable  at 
pleasure,  and  administered  in  subordination  to  claims  the  Commissioners 
may  think  fit  to  make  as  to  the  amount  of  duty  payable — and  what  is 
a  matter  of  legal  right.)  This  is  expressly  enacted  by  sec.  15  (1),  the 
exception  being  "  where  other  express  provision  is  in  this  Act  made ; " 
by  sec.  15  (2)  special  provisions  are  enacted  in  the  case  of  ad  valorem 
duties  on  those  instruments  chargeable,  by  reference  to  the  first  schedule 
of  the  Act,  as — 

"  Bond  covenant  or  instrument  of  any  kind  whatsoever." 

"  Conveyance  on  sale." 

"Lease  or  tack." 

"  Mortgage,  bond,  debenture,  covenant,  and  warrant  of  attorney  to 
confess  and  enter  up  judgment." 

"  Settlement." 

The  effect  of  these  provisions  is  as  follows : — {a)  A  period  of  thirty 
days  from  first  execution  or,  if  first  executed  out  of  United  Kingdom, 
first  receipt  in  United  Kingdom  is  given  for  stamping  these  instru- 
ments as  a  matter  of  legal  right;  or  {h)  if  the  instrument  has  been 
presented  for  adjudication  under  sec.  12  of  the  Act,  a  period  of  fourteen 
days  from  notice  of  the  assessment  of  duty  by  the  Commissioners  is 
given  as  a  matter  of  legal  right ;  (c)  on  failure  to  stamp  these  instru- 
ments with  duty  in  accordance  with  {a)  or  (b),  the  person  specified  in 
s.  15  (2)  {d)  incurs  a  fine  of  £10,  in  addition  to  the  ordinary  penalty  of 
£10,  and  interest  at  £5  per  cent,  if  the  duty  exceeds  £10  (imposed  by 
sec.  15  (1)).  There  is  an  additional  penalty  equivalent  to  the  stamp 
duty  unless  a  reasonable  excuse  for  delay  in  stamping  or  omission  to 
stamp  or  stamp  sufficiently  is  given  to  the  satisfaction  of  the  Commis- 
sioners or  Court ;  but  both  those  penalties  are  penalties  payable  only  if 
and  when  it  is  desired  to  stamp  the  instrument,  or  to  put  it  in  evidence. 

But  these  provisions  ((a),  (J),  and  (c))  only  apply  to  ad  valorem  duties, 
and  only  to  t\ios,e  ad  valorevi  duties  specified  in  sec.  15  (2)  {d)  (already 
set  out). 

Any  instruments  first  executed  out  of  the  United  Kingdom  may  be 
stamped  within  thirty  days  after  first  receipt  in  United  Kingdom  on 
payment  of  unpaid  duty  only  (s.  15  (3)  (a)),  and  the  Commissioners  may, 
if  they  think  fit  at  any  time,  mitigate  or  remit  any  penalty  payable  on 
stamping  (s.  15  (3)  (6)),  as  amended  by  Finance  Act,  1895,  58  &  59  Vict, 
c.  16,  s.  15. 

Three  stamps  are  obtainable  without  payment. 

1.  A  "  duty-paid  "  stamp — the  denoting  stamp  of  sec.  11. 

2.  An  "  adjudication  "  stamp  (ss.  12  and  13). 

3.  A  "  denoting  "  stamp  (s.  72). 

1.  Is  applicable  where  a  lower  rate  oi  ad  valorem  duty  is  payable  by 
reason  of  previous  payment  of  a  higher  rate  on  some  other  instrument, 
as  in  the  case  of  collateral  or  substituted  securities.  The  lower  rate  of 
duty  is  expressly  made  to  depend  on  the  primary  security  being  duly 
stamped.  The  primary  security  and  the  additional  or  substituted  security 
should  both  be  produced  stamped,  and  the  latter  may  then  have 
impressed  on  it  a  duty-paid  stamp  evidencing  the  fact  that  duty  has 
been  duly  paid  on  the  primary  security. 

VOL.  xm.  38 


594  STAMPS;  STAMP  DUTIES 

2.  Under  these  sections  the  Commissioners  may  be  required  to 
determine  whether  an  instrument  is  chargeable  with  any,  and,  if  so, 
what  duty.  The  Commissioners  may,  and  do,  require  an  abstract  of  the 
instrument,  a  formal  praecipe,  and  the  executed  instrument  itself  to  be 
personally  lodged,  and  may  call  for  any  evidence  necessary  to  show  to 
their  satisfaction  whether  all  the  facts  and  circumstances  affecting 
the  duty  are  set  forth  in  the  instrument.  Postal  adjudication  is 
obtainable  in  respect  of  documents  sent  up  from  addresses  outside  the 
Metropolitan  Postal  District  on  conditions  laid  down  by  a  circular  dated 
September  1899  (a  copy  of  which  can  be  obtained  on  application  to  the 
Commissioners) ;  a  fee  of  5s.  is  payable  by  stamped  warrant,  and  this 
warrant  contains  an  undertaking  to  stamp  the  instrument,  when  adjudi- 
cated, with  the  duty  to  which  it  is  adjudged  liable  (subject  of  course 
to  the  right  of  appeal  conferred  by  sec.  13  of  the  Stamp  Act,  1891).  The 
conditions  prescribed  in  other  respects  are  similar  to  those  already 
stated.  Instruments  chargeable  with  ad  valorem  duty,  as  security  for 
money  or  stock  without  limit,  and  instruments  which  cannot  legally  be 
stamped  after  execution,  are  excepted  from  the  operation  of  the  sections. 
If  the  applicant  is  dissatisfied  he  may,  within  twenty-one  days  after  the 
date  of  the  assessment,  and  on  payment  of  the  duty  assessed,  appeal  to 
the  High  Court  (no  longer  a  Divisional  Court  but  a  single  judge)  by  a 
notice  requiring  the  Commissioners  to  state  a  case  for  the  purpose ;  and 
the  Court  can  alter  the  assessment  and  order  repayment  of  duty  overpaid 
pursuant  to  the  assessment  altered  and  payment  of  costs  as  against  the 
unsuccessful  party  (there  is  no  express  power  to  order  payment  of  unpaid 
duty).  If  the  applicant  is  satisfied  with  the  assessment  of  the  Com- 
missioners he  should  take  care  to  pay  the  duty  assessed,  and  have  the 
adjudication  stamp  impressed,  for  by  sec.  12,  sub-sees.  (4)  and  (5),  this 
adjudication  stamp  precludes  any  question  of  sufficiency  of  stamp  duty 
being  raised  in  any  Court. 

3.  Sec.  72  provides  that  duplicates  or  counterparts  are  not  to  be 
deemed  duly  stamped  unless  stamped  as  originals,  or  unless  impressed 
with  a  denoting  stamp  evidencing  payment  of  sufficient  duty  on  the 
original  (the  section  expressly  excepts  counterparts  of  instruments 
chargeable  as  leases,  unless  executed  by  or  on  behalf  of  lessor). 

The  scope  of  this  article  necessitates  either  a  short  reference  to  each 
charge  in  the  Stamp  Act  (which  would  have  resulted  in  an  abbreviation 
of  the  first  schedule  to  the  Act)  or  a  reference  to  the  more  important 
points  of  those  charges  which,  from  their  frequency  or  amount,  are  of 
greater  practical  importance.  In  choosing  the  latter  course  a  selection 
has  been  made  of  bills  and  notes ;  conveyances  on  sale ;  leases ;  market- 
able securities ;  mortgages,  bonds  and  covenants ;  policies  of  assurance ; 
settlements. 

Bills  of  Exchange  and  Promissory  Notes. — The  charge  of  duty  is 
imposed  by  sec.  1  of  the  Stamp  Act,  1891,  and  is  contained  in  the  first 
schedule  to  that  Act. 

This  has  been  amended  by  sec.  10  of  the  Finance  Act,  1899,  62  &  63 
Vict.  c.  9.     The  duties  are : — 

}  •'  On  bills  of  exchange  payable  on  demand,  at  sight,  on  presentation  or 
within  three  days  after  date  or  sight.  Id.  On  bills  of  exchange  (not 
payable  as  aforesaid)  drawn  and  expressed  to  be  payable  out  of  the 
United  Kingdom,  when  actually  paid  or  indorsed  or  in  any  manner 
negotiated  in  the  United  Kingdom,  when  the  amount  for  which  the  bill 
is  drawn  exceeds  £50  and  does  not  exceed  £100,  6d.  for  every  £100  or 
fractional  part  of  £1 00. 


STAMPS ;  STAMP  DUTIES  695 

On  bills  of  any  other  kind,  and  promissory  notes  of  any  kind  (except 
bank  notes),  drawn  or  expressed  to  be  payable,  or  actually  paid  or 
indorsed  or  in  any  manner  negotiated  in  the  United  Kingdom,  an  ad 
valorem  duty  of  Is.  per  cent,  as  in  the  Sched.  (1)  provided. 

It  will  be  noticed  that  a  bill  of  exchange  or  promissory  note  is 
rendered  liable  to  duty,  not  only  by  being  drawn  here  or  being  expressed 
to  be  payable  here,  which  are  conditions  of  liability  in  accordance  with 
the  general  conditions  laid  down  in  sec.  14  (4),  but  also  by  reason  of 
subsequent  dealings  with  the  instrument,  e.g.  payment  or  indorsement 
or  negotiation  of  it  here  which  would  not  entail  duty  if  the  general 
conditions  had  not  been  supplemented  by  these  words.  With  regard  to 
the  exception  of  bank  note,  this  is  the  subject  of  a  separate  and  higher 
charge  of  duty ;  and  sec.  29,  without  defining  bank  note,  enacts  that  the 
expression  shall  include  bills  and  notes  issued  by  any  banker  other  than 
the  Bank  of  England  for  money  not  exceeding  £100  payable  to  bearer 
on  demand. 

The  charge  is  subject  to  eleven  exemptions;  of  these  No.  10  has 
been  the  subject  of  decision  in  The  Committee  of  London  Gleairmg  Bankers 
V.  Commissioners,  [1896]  1  Q.  B.  222,  and  No.  11  has  been  extended  by 
the  Finance  Act,  1894,  s.  40,  in  consequence  of  the  decision  in  Rothschild 
&  Sons  V.  Commissioners,  [1894]  2  Q.  B.  142 ;  but  with  the  exception  of 
No.  11  they  are  not  of  general  importance  to  ordinary  persons,  except  in 
so  far  as  they  indirectly  show  the  scope  of  the  charge  of  duty,  for  the 
express  exemption  of  these  instruments  may  be  thought  to  lead  to  the 
inference  that  the  legislature  regarded  them  as  charged,  and  if  so, 
instruments  ejusdem  generis,  which  are  not  exempted,  are  thereby 
inferentially  indicated  as  within  the  charge. 

The  Act  contains  no  definition  of  bill  of  exchange,  bill  of  exchange 
payable  on  demand,  or  promissory  note;  these  definitions  must  be 
supplied  from  sees.  3,  10,  and  83  of  the  Bills  of  Exchange  Act,  1882. 
These  definitions  are  supplemented  by  sees.  32  and  33  of  the  Stamp  Act, 
1891,  which  provide  that  "  bill  of  exchange,"  "  bill  of  exchange  payable 
on  demand,"  and  "  promissory  note,"  shall "  include  "  documents  which  by 
the  law  merchant  would  not  be  either  bills  or  notes. 

The  provisions  of  sec.  33,  or  the  corresponding  provisions  of  the  Stamp 
Act,  1870,  sec.  49,  were  considered  by  the  Court  in  Mortgage  Insurance 
Corporation  v.  Commissioners,  1888,  21  Q.  B.  D.  352 ;  Brown,  Shipley  <&  Co. 
V.  Commissioners,  [1895]  2  Q.  B.  598,  and  the  decisions  show  a  strong 
tendency  to  restrict  the  wide  language  of  the  section  to  instruments 
which  resemble  closely  the  ordinary  mercantile  note,  in  this,  that  they 
secure  a  definite  sum  of  money  and  that  only. 

The  duty  on  bills  payable  on  demand,  at  sight,  or  on  presentation 
may  be  denoted  by  an  adhesive  stamp.  If  the  bill  is  drawn  in  the 
United  Kindom,  and  an  adhesive  stamp  used,  it  is  to  be  cancelled  by 
the  person  signing  the  bill  before  delivery  (s.  34  (1)).  Bills  and  all 
notes  drawn  or  made  out  of  United  Kingdom  ("  or  purporting  to  be," 
for  this  is  to  have  the  same  effect,  s.  36),  are  to  be  stamped  with  adhesive 
stamps  (s.  34  (1)). 

Everyone  into  whose  hands  any  bill  or  note  drawn  or  made  out  of 
the  United  Kingdom  comes  in  the  United  Kingdom  before  it  is  stamped, 
is,  before  he  presents  for  payment,  negotiates,  or  pays  it,  to  affix  and 
cancel  the  proper  adhesive  stamp  (s.  35  (1)).  This  provision  is  subject 
to  a  saving  of  the  rights  of  a  "  hond-fide  holder,"  to  the  effect  (presum- 
ably, the  language  is  not  very  apt)  that  a  proper  stamp  apparently  duly 


596  STAMPS  ;  STAMP  DUTIES 

cancelled,  though  in  fact  it  was  not  affixed  or  cancelled  by  the  proper 
person,  should  be  deemed  duly  (?  affixed  and)  cancelled,  or  if  an  uncan- 
celled adhesive  stamp  be  affixed  the  hond-jide  holder  may  cancel  it  as 
if  he  had  affixed  it,  and  then  the  bill  shall  be  deemed  "  as  valid  and 
available  as  if  the  stamp  had  been  cancelled  by  the  person  affixing  it " 
(?  who  ought  to  have  affixed  it). 

By  sec.  37  a  bill  or  note  written  on  an  impressed  stamp  of  sufficient 
amount,  but  improper  denomination,  may  be  stamped  with  the  proper 
stamp  on  payment  of  the  duty,  and  a  penalty  of  forty  shillings,  if  not 
then  payable,  or  £10  if  it  is  payable;  but  except  as  provided  in  this 
section  and  in  the  previous  sections  already  quoted,  permitting  or 
directing  the  use  of  adhesive  stamps,  no  bill  is  to  be  stamped  after 
execution. 

Everyone  who  issues,  negotiates,  presents  for  payment,  or  pays  a  bill 
or  note  liable  to  duty,  and  not  duly  stamped,  incurs  a  penalty  of  £10, 
and  anyone  receiving  such  note  in  payment,  security,  by  way  of  pur- 
chase, or  otherwise,  cannot  recover  thereon  (s.  38  (1));  but  as  to  bills 
payable  on  demand,  at  sight,  or  on  presentation  (though  the  penalty  is 
unaffected),  if  presented  for  payment  unstamped,  the  person  to  whom 
such  bill  is  presented  may  affix  adhesive  stamp  and  cancel  as  if  he  had 
been  the  drawer,  and  may  then  pay  the  sum  mentioned  in  the  bill, 
etc.,  and  the  bill  is  to  be  deemed  valid  as  far  as  duty  is  concerned. 

One  bill  of  a  set  only,  as  a  rule,  need  be  stamped  (s.  39). 

Conveyance  on  Sale. — The  duty  on  a  conveyance  on  sale  is  5s.  for 
every  £50  or  fractional  part  of  £50  of  the  consideration.  This  duty 
is  or  may  be  charged  on — 

1.  Conveyances  on  sale  (s.  54). 

2.  Release  or  renunciation  of  any  property  or  any  right  or  interest 
in  any  property  (Sched.  1,  tit.  "  Release  "). 

3.  Contracts  for  sale  (s.  59). 

4.  Bonds,  covenants,  warrants  of  attorney,  contracts  executed  on 
sale  (s.  60). 

Two  of  these  cases  require  separate  consideration.  As  to  (1),  sec.  54 
defines  " conveyance  on  sale"  in  effect  as  any  instrument  whereby — 
(a)  property  (h)  is  transferred  (c)  on  sale. 

That  Act  contains  no  definition  of  "  property."  Many  meanings  of 
that  term  are  enumerated  by  Austin,  Jurisprudence,  5th  ed.,  pp.  789-792, 
but  no  decision  enables  a  selection  to  be  made  from  those  meanings 
for  the  purposes  of  this  Act,  or  a  new  definition  to  be  formulated.  The 
question  whether  an  instrument,  which  in  other  respects  would  have 
fallen  under  sec.  54,  transferred  property  was  the  subject  of  decision 
in  Potter  v.  Commissioners,  1854,  23  L.  J.  Ex.  345  ;  Limmer  Asphalte Paving 
Co.  V.  Commissioners,  1872,  L.  R.  7  Ex.  211 ;  Conservators  of  River  Thames 
v.  Commissioners,  1886, 18  Q.  B.  D.  279  ;  B.  Brooke  &  Co.  v.  Commissioners, 
[1896]  2  Q.  B.  356 ;  Smelting  Co.  of  Australia  v.  Commissioners,  [1897] 
1  Q.  B.  175. 

The  instrument  must  transfer  property.  It  must,  however,  not  be 
forgotten  that  the  extinction  (without  transfer)  of  property,  or  a  right 
or  interest  in  property  under  such  circumstances  that  its  transfer  would 
have  been  a  conveyance  on  sale,  would  be  chargeable  with  like  duty 
under  the  second  head  above  referred  to  ("  Release,"  etc.). 

This  transfer  must  be  on  "  sale."  Sale  at  common  law  involves  two 
parties  :  a  thing,  a  price  in  money ;  and  an  agreement  to  give  the  one 
for  the  other.     But  sees.  55  and  57  are  in  effect  a  statutory  extension 


STAMPS ;  STAMP  DUTIES 


597 


of  the  common-law  requisites  constituting  a  sale,  and  enable  transfers, 
in  consideration  of  stock  marketable  or  other  securities  or  debts,  to 
be  treated  as  sales. 

The  following  decisions  as  to  whether  the  transaction  leading  to  the 
transfer  was  a  sale  may  be  referred  to  -.-^Great  Western  Ely.  Co.  v.  Com- 
missioners, [1894]  1  Q.  B.  507  ;  Foster  v.  Commissioners,  [1894]  1  Q.  B.  516 ; 
Huntington  v.  Commissioners,  [1896]  1  Q.  B.  422 ;  J.&P.  Coats  v.  Commis- 
sioners, [1897]  2  Q.  B.  423 ;  and  Massy  Dawson  v.  Commissioners  of  L  B.^ 
[1905]  2  Ir.  Kep.  69. 

When  the  consideration  for  conveyance  on  sale  consists  of  periodical 
payments,  sec.  56  provides  a  statutory  mode  of  valuation. 

,    /"Payable  for    a  definite  period  less  than  twenty\rj,      i  -„„„„*. 
'  \         years.  / 

(Payable  for  a  definite  period  exceeding  twenty 


years. 
^  ^  Payable  in  perpetuity. 

Payable   for   indefinite   period  not  terminable 
with   life. 


Payable  periodically  during  life  or  lives. 


Amount  payable  dur- 
ing next  twenty 
years  from  date  of 
instrument. 

Amount  payable  dur- 
ing next  twelve 
years  from  date  of 
instrument. 


It  does  not  matter  that  the  periodical  payment  is  dependent  on  a 
contingency  or  contingencies;  duty  is  payable  on  the  contingent  maximum 
amount  and  the  statutory  method  of  valuing  applies  to  it  (see  Under- 
ground Electric  Railways  Co.  of  London,  Ltd.  v.  Commissioiurs  of  L.  i2., 
[1906]  A.  C.  21). 

By  sec.  10  of  the  Finance  Act,  1900, 63  &  64  Vict.  c.  7,  a  conveyance  on 
sale  is  not  to  attract  duty  {i.e.  the  fixed  duty  of  lOs.)  in  respect  of  a 
covenant  by  the  purchaser  to  make  any  improvement  or  addition  to  the 
property  conveyed  to  him  or  of  his  having  previously  made  such  improve- 
ment or  addition  or  in  respect  of  any  covenant  relating  to  the  subject- 
matter  of  the  conveyance — in  addition  to  the  ad  valorem  duty — this  clause 
is  retrospective  and  qualities  sec.  4  (6)  of  the  Stamp  Act,  1891. 

Sec.  58  contains  provisions  as  to  apportionment  of  consideration  when 
property  bought  for  one  consideration  is  conveyed  by  several  deeds,  and 
as  to  subsale  before  conveyance ;  and  sec.  61  determines  the  document 
to  bear  duty  when  the  subject-matter  of  sale  is  a  copyhold  or  customary 
estate. 

By  (1)  and  (2)  of  the  General  Exemptions  from  all  stamp  duties  (at 
end  of  Sched.  1),  transfers  of  shares  in  the  Government  or  parliamentary 
stocks  or  funds,  and  of  ships  or  shares  or  interest  in  ships,  are  taken 
out  of  the  charge.  Transfers,  whether  on  sale  or  otherwise,  of  stock  in 
the  Bank  of  England  are  rendered  liable  to  a  special  duty  of  7s.  9d. 
Transfers  on  sale  or  otherwise,  unless  made  on  appointment  of  new 
trustees  (s.  62),  of  stock  of  Government  of  Canada  inscribed  in  books 
to  be  kept  in  United  Kingdom,  or  of  certain  Colonial  stocks,  are  rendered 
liable  to  2s.  6d.  per  cent,  on  the  nominal  value  of  the  stock  transferred. 
As  to  (3),  the  history  of  sec.  59  is  as  follows : — Text-books  frequently 
say  that  a  contract  of  a  sale  of  land  is  a  conveyance  in  equity ;  analogies 
are  notoriously  misleading,  and  this  statement,  which  is  at  best  a  rough 


598  STAMPS;  STAMP  DUTIES 

approximation,  summarising  the  consequences  which  follow  in  equity 
from  concluding  an  agreement,  and  not  a  recognised  principle  and  source 
of  those  consequences,  led  to  a  claim  on  the  part  of  the  Commissioners 
that  an  agreement  for  sale  was  chargeable  as  a  conveyance  on  sale  within 
the  language  of  sec.  70  of  the  Stamp  Act,  1870,  which  defined  convey- 
ance on  sale  as  "  every  instrument  whereby  any  property,  upon  the  sale 
thereof,  is  legally  or  equitably  transferred,"  etc. 

This  claim  was  rejected  by  the  Court  of  Appeal  in  the  case  of  Angus 
V.  Co7nmissioners  of  I.  R.,  1889,  23  Q.  B.  D.  579,  and  that  decision  led 
to  the  passing  of  sec.  15  of  the  Kevenue  Act,  1889.  The  provisions  of 
sec.  59  of  the  Stamp  Act,  1891,  were  substituted  for  sec.  15  of  the  Act 
of  1889. 

The  effect  of  sec.  59  is  as  follows : — 

A  contract  or  agreement  made  in  England,  Scotland,  or  Ireland  for 
the  sale  of  any  estate  or  interest  in  property  is  chargeable  with  ad  valorem 
duty  on  the  price,  except  in  so  far  as  that  price  is  attributable  to  subject- 
matter  which  the  section  expressly  exempts  from  the  charge  thereby 
imposed.     These  exceptions  are: — 

1.  Lands,  tenements,  hereditaments,  or  heritages. 

2.  "  Property  locally  situate  out  of  the  United  Kingdom."  On  the 
scope  of  this  exception  see  Smelting  Co.  of  Australia,  Ltd.  v.  Commissioners, 
[1897]  1  Q.  B.  175 ;  Danubian  Sugar  Factories,  Ltd.  v.  Commissioners, 
[1901]  1  Q.  B.  245  ;  Commissioners  of  I.  R.  v.  Muller  &  Co.'s  Margarine, 
Ltd.,  [1901]  A.  C.  217. 

3.  Goods,  wares,  and  merchandise. 

4.  Stock  or  marketable  securities. 

5.  Any  ship  or  vessel,  or  part  or  interest  in  any. 

These  exceptions  do  not  apply  to  equitable  interests  (see  Farmer 
V.  Commissioners,  [1898]  2  Q.  B.  141).  See  also  Chesterfield  Brewery  Co. 
V.  Commissioners  of  L  R,  [1899]  2  Q.  B.  7. 

The  section  contains  provisions : — freeing  the  transfer  to  the  pur- 
chaser of  the  property,  in  respect  of  the  price  of  which  duty  is  payable, 
and  has  been  paid  on  the  contract,  from  further  duty ; — enabling  an 
agreement,  chargeable  with  ad  valorem  duty  under  this  section,  to  be 
nevertheless  treated  as  duly  stamped  "  for  the  mere  purpose  of  proceed- 
ings to  enforce  specific  performance  or  recover  damages  for  the  breach 
thereof ; " — and  directing  a  return  of  the  duty  in  case  the  contract  be 
afterwards  rescinded  or  annulled. 

Leases. — The  charge  of  duty  on  leases  is  in  the  first  schedule  of  the 
Act,  title,  "  lease  or  tack."  Ad  valorem  lease  duty  is  payable  only  on 
a  demise — 

1.  Of  lands,  tenements,  or  heritable  subjects ; 

2.  In  respect  of  "  rent." 

This  second  limitation  does  not  operate  to  exclude  from  the  charge 
demises  of  incorporeal  hereditaments  purporting  to  reserve  "rent" 
{Lowther  v.  Commissioners  of  I.  R.,  1900,  Nov.  27,  not  reported). 

A  lease  is  chargeable  in  respect  of  any  fine  or  premium  consisting  of 
money,  stock,  or  security,  with  the  same  duty  as  a  conveyance  on  sale 
for  the  same  consideration,  and  a  fixed  duty  of  10s.  is  also  payable  in 
respect  of  any  other  consideration  not  attracting  ad  valorem  duty  (s.  4) ; 
but  if  such  other  consideration  consists  of  a  penal  rent,  the  surrender 
of  an  existing  lease,  or  agreement  for  lease,  of  the  same  subject-matter 
(s.  77  (1)),  a  covenant  by  the  lessee  to  make,  or  his  having  previously 
made,  any  substantial  improvement  of,  or  addition   to,  the  property 


STAMPS;  STAMP  DUTIES  599 

demised  to  him,  or  any  covenant  relating  to  the  matter  of  the  lease 
(s.  77  (2)),  no  duty  is  to  be  payable  in  respect  thereof.  See  as  to  what 
is  a  covenant  relating  to  the  matter  of  the  lease  within  this  sub-section, 
British  Electric  Traction  Co.,  Ltd.  v.  Commissioners  of  I.  B.,  [1902]  1  K.  B. 
441. 

Where  the  consideration  or  part  of  the  consideration  for  a  lease 
consists  of  produce  or  other  goods,  the  value  of  the  produce  or  goods  is 
to  be  deemed  a  consideration  in  respect  of  which  the  lease  is  chargeable 
with  ad  valorem  duty  (s.  76  (1)).  This  is  an  exceptional  provision,  for 
in  general  ad  valorem  duty  is  only  payable  in  respect  of  money,  stock, 
or  security.  Sec.  76  (2)  contains  provisions  directing  how  the  value  of 
the  goods  or  produce  is  to  be  assessed  in  certain  cases,  and  sec.  76  (3) 
provides  that  where  the  deed  contains  a  statement  of  value  of  such 
goods  or  produce,  and  is  stamped  in  accordance  with  that  statement, 
the  deed  is  deemed  duly  stamped  until  the  statement  is  shown  to  be 
inaccurate.  Agreements  for  leases,  "  or  with  respect  to  the  letting  "  of 
lands,  tenements,  or  heritable  subjects  for  any  term  not  exceeding 
thirty-five  years,  or  for  any  indefinite  term,  are  chargeable  as  if  they  were 
actual  leases,  and  a  lease  made  subsequently  in  conformity  with  such  an 
agreement  is  charged  with  6d.  only  (s.  75  (1)  and  (2)). 

Instruments  increasing  rent  reserved  by  duly  stamped  leases  are 
chargeable  as  leases  in  consideration  of  the  additional  rent,  and  with  no 
further  duty  (s.  77  (5)).  The  duties  of  Id.  in  respect  of  a  lease  of  a 
dwelling-house  at  a  rent  not  exceeding  the  rate  of  £10  per  annum,  and 
of  2s.  6d.  in  respect  of  a  lease  of  a  furnished  dwelling-house  or  apartments 
for  a  definite  term  less  than  a  year,  at  a  rent  exceeding  £25  may  be 
denoted  by  adhesive  stamps,  to  be  cancelled  by  the  person  by  whom 
the  instrument  is  first  executed  (s.  78  (1));  and  any  person  who 
executes  or  prepares  any  such  instrument  (except  letters  or  correspond- 
ence), which  is  not  at  or  before  execution  duly  stamped,  incurs  a  fine 
of  £5. 

Marketable  Securities. — Sec.  122  of  the  Act  defines  marketable  security 
as  "  a  security  of  such  a  description  as  to  be  capable  of  being  sold  in  any 
stock  market  in  the  United  Kingdom." 

Sec.  82  (1)  enacts — 

(1)  Marketable  securities  for  the  purpose  of  the  charge  of  duty  thereon 
include — 

(a)  A  marketable  security,  made  or  issued  by  or  on  behalf  of  any  company 
or  body  of  persons  corporate  or  unincorporate  formed  or  established  in  the 
United  Kingdom ;  and 

{h)  A  marketable  security  by  or  on  behalf  of  any  foreign  State  or  Govern- 
ment, or  foreign  or  colonial  municipal  body,  corporation,  or  company  (herein- 
after called  a  foreign  security),  bearing  date  or  signed  after  the  third  day  of 
June,  one  thousand  eight  hundred  and  sixty-two, 

(i.)  Which  is  made  or  issued  in  the  United  Kingdom ;  or 

(ii.)  Which,  though  originally  issued  out  of  the  United  Kingdom,  has 
been,  after  the  sixth  day  of  August,  one  thousand  eight  hundred  and  eighty- 
five,  or  is  ofiFered  for  subscription,  and  given  or  delivered  to  a  subscriber  in 
the  United  Kingdom  ;  or 

(iii.)  Which,  the  interest  thereon  being  payable  in  the  United  Kingdom, 
is  assigned,  transferred,  or  in  any  manner  negotiated  in  the  United  Kingdom ; 
and 

(c)  A  marketable  security  by  or  on  behalf  of  any  colonial  Government, 
which,  if  the  borrower  were  a  foreign  Government,  would  be  a  foreign 
security  (hereinafter  called  a  colonial  Government  security). 


600  STAMPS;  STAMP  DUTIES 

Sec.  82  (2)  and  sec.  85  of  the  Act  were  repealed  by  56  Vict.  c.  7, 

«•  4  (2)- 

As  to  foreign  securities  and  colonial  Government  securities,  sec.  83 

imposes  a  penalty  of  £20  on  everyone  who,  in  the  United  Kingdom, 
assigns,  transfers,  negotiates,  or  offers  for  subscription  any  such  security 
not  duly  stamped ;  and  sec.  84  enables  the  Commissioners  to  allow  any 
such  security  to  be  stamped  at  any  time  without  penalty,  on  being  satis- 
fied that  it  was  not  made  or  issued  and  has  not  been  transferred,  etc., 
within  the  United  Kingdom ;  while  sec.  14  of  the  Finance  Act,  1895,  58 
&  59  Vict.  c.  16,  directs  that  in  case  of  foreign  securities  within  sees. 
82  and  83  of  the  Stamp  Act,  1891,  issued  in  the  United  Kingdom 
(interest  not  being  payable  in  United  Kingdom)  the  Commissioners 
may  accept  payment  of  the  amount  of  stamp  duty  in  respect  of  all 
the  securities  and  dispense  with  stamping — giving  notice  in  the  London 
Gazette. 

The  duties  imposed  on  marketable  securities  are  to  be  found  in 
Sched.  1  to  the  Act,  title  "  Marketable  Security"  (and  "  Foreign  or  Colonial 
Share  Certificate  ").  The  words  in  brackets,  and  subheads  five  and  six  of 
same  title,  were  repealed  by  56  Vict.  c.  7,  s.  4  (2). 

Duty  is  charged  on  the  money  secured  {Howell  v.  Commissioners, 
[1897]  2  Q.  B.  194 ;  and  see  Knight's  Deep,  Ltd.  v.  Commissioners  of  I.  R., 
[1900]  1  Q.  B.  217).  If  the  marketable  security  is  a  colonial  Govern- 
ment security  (whether  it  be  transferable  by  deed  or  delivery),  is  not 
transferable  by  delivery;  or  being  transferable  by  delivery,  became 
subject  to  duty  before  August  6, 1885,  the  duty  is  2s.  6d.  per  £100 ; 
if  it  is  transferable  by  delivery,  and  became  subject  to  duty  after  August  6, 
1885,  the  duty  is  Is.  for  every  £10  and  fraction  of  £10  of  the  money 
thereby  secured. 

But  where  a  marketable  security,  transferable  by  delivery,  is  issued 
in  substitution  for  a  like  security,  and  the  latter  was  duly  stamped  in 
accordance  with  the  law  in  force  when  it  became  subject  to  duty,  the 
substituted  instrument  attracts  a  duty  of  6d.  for  every  £20  and  fraction 
of  £20  of  the  money  thereby  secured. 

As  to  what  is  a  like  security,  see  Mount  Lyell  Mining  and  Bly.  Co. 
Ltd.  v.  Commissioners  of  I.  B.,  [1905]  1  K.  B.  161. 

It  would  seem  that  any  instrument  conferring  rights  on  the  holder, 
enforceable  under  and  by  virtue  of  the  terms  of  the  instrument,  which 
rights  are  transferable  and  capable  of  sale  on  a  stock  market  is  a 
marketable  security,  provided  it  secures  the  payment  of  money  and  the 
amount  secured  is  ascertainable  at  its  date.  Whether  it  is  chargeable 
with  duty  (as  to  those  marketable  securities  charged  by  the  Stamp  Act, 
1891)  depends  on  the  question  whether  it  satisfies  the  other  conditions 
already  referred  to  on  which  the  liability  to  duty  depends,  viz.,  made  or 
issued  or  offered  for  subscription,  etc.,  in  the  United  Kingdom. 

But  the  cases  of  Baring  v.  Commissioners,  [1898]  1  Q.  B.  78  (as  to 
what  constitutes  "  issue ") ;  Brown,  Shipley  &  Co.  v.  Commissioners, 
[1895]  2  Q.  B.  240  (as  to  whether  the  instrument  was  a  promissory  note 
or  marketable  security),  Speyer  Bros.  v.  Commissioners  of  I.  B.,  [1908] 
A.  C.  92,  are  the  most  important  recent  cases.  By  the  Finance  Act, 
1899,  62  &  63  Vict.  c.  9,  s.  4,  every  marketable  security  made  or  issued 
by  or  on  behalf  of  any  foreign  State  or  Government  or  foreign  or 
colonial  municipal  body,  corporation,  or  company,  being  a  security 
transferable  by  delivery  which  was  not  under  these  provisions  charge- 
able with  stamp  duty  as  a  marketable  security  transferable  by  delivery. 


STAMPS;  STAMP  DUTIES  601 

and  which  is,  after  the  Ist  day  of  August  1899,  assigned,  transferred,  or 
in  any  manner  negotiated  in  the  United  Kingdom  is  charged  with  duty 
at  the  rate  of  Is.  for  every  £10  and  every  fraction  of  £10  of  the  money 
thereby  secured.  It  will  be  noticed  that,  as  to  marketable  securities 
brought  into  charge  by  the  Act  of  1899,  there  is  no  substituted  rate 
either  in  respect  of  marketable  securities  charged  under  that  Act  which 
are  issued  in  substitution  for  securities  charged  under  the  same  Act, 
nor  in  respect  of  marketable  securities  charged  under  that  Act  issued 
in  substitution  for  marketable  securities  charged  under  the  Act  of  1891. 
By  section  6  of  the  Act  of  1899  an  instrument  used  for  the  purpose  of 
assigning,  transferring,  or  in  any  manner  nogotiating  the  right  to  any 
marketable  security  is,  if  delivery  thereof  is  by  usage  treated  as  sufficient 
for  the  purpose  of  a  sale  on  the  market  (whether  that  delivery  constitutes 
a  legal  assignment,  transfer,  or  negotiation  or  not)  to  be  deemed  a  market- 
able security  transferable  by  delivery,  and  the  delivery  thereof  an 
assignment,  transfer,  or  negotiation :  and  by  sec.  4  (3)  of  the  same  Act 
every  person  who,  in  the  United  Kingdom,  assigns,  transfers,  or  in  any 
manner  negotiates  or  is  concerned  as  broker  or  agent  in  assigning, 
transferring,  or  in  any  manner  negotiating  an  instrument  chargeable 
with  marketable  security  duty  under  sec.  4  (1)  of  that  Act  and  not 
duly  stamped,  incurs  a  fine  of  £20  and  the  amount  of  the  duty  is  a  debt 
due  from  any  such  person  to  His  Majesty. 

A  transfer  on  sale  of  a  marketalDle  security  is  liable  to  duty,  as  a 
conveyance  on  sale,  on  the  consideration  for  the  transfer,  whereas 
transfers  of  mortgages,  debentures,  and  bonds,  which  are  not  "  market- 
able securities,"  are  liable  only  to  6d.  per  cent,  on  the  amount  trans- 
ferred. Transfers  of  marketable  securities  on  mortgage  are  dealt  with 
under  the  head  Mortgage,  and  transfers  otherwise  than  on  sale  or 
mortgage,  are  liable  to  a  fixed  duty  of  10s. 

Moi'tgage,  Bond,  Debenture,  Covenant  {except  a  Marketable  Security 
otherwise  specially  charged  with  Duty),  and  Warrant  of  Attorney  to 
confess  and  enter  up  Judgment. — In  each  of  these  cases  duty  is  leviable 
at  the  rate  of  2s.  6d.  per  £100  of  the  money,  the  payment  or  repayment 
of  which  is  secured  by  the  instrument ;  but  while  there  are  no  special 
provisions  in  the  Stamp  Act  as  to  what  is  to  constitute  for  the  purposes 
of  duty  a  "  bond,"  "  debenture,"  "  covenant,"  or  "  warrant  of  attorney," 
etc.,  there  are  special  provisions  as  to  "  mortgage." 

In  order  that  a  mortgage  may  fall  within  tlie  charge  it  must  be  a 
"  security  by  way  of  mortgage,"  and  must  be  "  for  the  payment  of  a 
definite  and  certain  sum  of  money  advanced  or  lent  at  the  time  or 
previously  due,  and  owing  or  forborne  to  be  paid,  being  payable,  or  for 
the  repayment  of  money  to  be  thereafter  lent,  advanced,  or  paid,  or 
which  may  become  due  upon  an  account  current,  together  with  any 
sum  already  advanced  or  due,  or  without,  as  the  case  may  be,"  sec. 
86  (1),  a  section  which  also  enumerates  a  number  of  instruments  which 
the  term  "  security  by  way  of  mortgage  "  is  to  be  deemed  to  "  include." 
Sec.  88  (3),  it  should  be  noted,  expressly  provides  that  duty  is  not  to  be 
assessable  on  money  advanced  for  fire  insurance  on  property,  or  for 
keeping  up  life  policies,  comprised  in  the  mortgage,  or  for  renewing 
mortgaged  leases. 

The  Act,  by  sec.  86  (2),  expressly  defines  an  equitable  mortgage  as 
meaning,  for  the  purposes  of  the  lower  rate  of  stamp  duty  at  Is.  per 
cent,  imposed  thereon,  an  "  agreement  or  memorandum  under  hand  only 
relating  to  the  deposit  of  any  title-deeds  or  instruments  constituting  or 


602  STAMPS;  STAMP  DUTIES 

being  evidence  of  the  title  to  any  property  whatever  (other  than  stock 
or  marketable  security)  or  creating  a  charge  on  such  property." 

It  is  clear  that  if  an  equitable  mortgage  is  under  seal,  it  is,  under 
the  Stamp  Act,  1891,  chargeable  with  duty  at  the  rate  of  2s.  6d.  per 
cent.  If  the  subject-matter  of  the  security  is  "  stock  "  or  "  marketable 
security,"  in  no  case,  whatever  the  form  of  the  security,  is  it  chargeable 
as  a  equitable  mortgage.  By  sec.  86  (1)  if  there  be  "a  deed  operating 
as  a  mortgage  "  of  stock  or  marketable  securities,  it  is  liable  to  duty  at 
the  rate  of  2s.  6d.  per  cent.,  and  if  it  is  under  hand  it  is  chargeable  in 
accordance  with  the  provisions  of  sec.  23,  or  falls  under  the  head  "  agree- 
ment." Sec.  88,  sub-sees.  1  and  2,  provide  for  stamp  duty  on  securities 
where  the  total  amount  secured  is  limited  (a  provision  which  was  the 
subject  of  judicial  construction  in  the  City  of  London  Brewery  Co.  v. 
Commissioners,  [1899]  1  Q.  B.  121),  and  enables  the  duty  to  be  increased 
when  the  total  amount  is  unlimited,  as  and  when  each  new  advance  is 
made  in  excess  of  the  amount  which  the  stamp  duty  impressed  thereon 
covers. 

Sec.  87  (1)  provides  that  securities  for  the  transfer  or  retransfer  of 
stock  are  to  be  charged  with  the  same  duty  as  securities  for  money  equal 
in  amount  to  the  value  of  the  stock.  By  sec.  87  (2),  securities  for 
repayment  of  loans  by  way  of  rent-charge  or  periodical  payments  are  to 
be  charged  with  duty  on  the  amount  of  the  loans  (see  Mersey  Docks  and 
Harhour  Board  v.  Commissioners,  [1897]  2  Q.  B.  316).  Sec.  87  (3)  is 
referred  to  later.  Sec.  87  (4)  and  (5)  regulate  the  payment  of  duty 
where  copyholds  are  mortgaged  either  alone  or  with  other  property. 

Where  one  security  chargeable  under  any  of  these  heads,  viz.,  either 
as  a  mortgage,  bond,  debenture,  covenant,  or  warrant  of  attorney,  is 
accompanied  or  followed  by  another  similar  security  for  the  same  debt, 
which  if  standing  alone  would  attract  duty  at  the  rate  of  2s.  6d.  per 
cent.,  the  second  security,  provided  the  first  be  duly  stamped,  is  liable 
to  the  lower  rate  of  6d.  per  cent.  The  second  security,  whether 
"collateral  or  auxiliary,  or  additional  or  substituted,  or  by  way  of 
further  assurance  " — whether  contemporaneously  or  subsequently  given, 
and  whether  it  confers  a  right  against  a  person  or  property — is  liable 
to  this  duty,  the  exceptions  being  those  resulting  from  the  statutory 
provisions  of  sec.  87  (3)  and  (5).  But  in  respect  of  documents  executed 
on  and  after  the  passing  of  the  Eevenue  Act,  1903,  3  Edw.  vii.  c.  46,  s.  7, 
and  in  respect  of  advances  made  on  or  after  that  date  on  securities 
without  limit  executed  before  that  date  the  maximum  duty  under  or 
by  reference  to  this  head  is  10s.  It  is,  however,  expressly  provided  that 
this  shall  not  apply  to  equitable  mortgages,  and  the  result  is  that  if  A. 
gives  B.  ten  documents  under  hand  only,  each  charging  a  small  portion 
of  property  to  secure  one  and  the  same  debt  of  £10,000,  each  instrument 
is  liable  to  Is.  per  cent,  on  £10,000. 

Transfers  of  mortgages,  bonds,  debentures,  and  covenants  (other 
than  marketable  securities),  or  of  the  money  secured  thereby  or  by  a 
warrant  of  attorney,  or  by  a  judgment,  are  liable  to  6d.  per  cent.  This 
duty  is  on  the  amount  transferred.  Sec.  87  (3)  provides  that  a  transfer 
is  not  to  be  chargeable  with  any  duty  by  reason  of  it  containing  any 
further  security  for  the  money  transferred ;  thus  excepting  an  instru- 
ment which  would  be  chargeable  with  two  duties  of  6d.  per  cent.,  one 
as  a  transfer  and  one  as  a  collateral  security  from  the  latter  duty. 

Keconveyances  or  releases  of  "  any  such  security,"  or  the  money 
thereby  secured,  are  chargeable  with  duty  of  6d.  per  cent,  on  the  "  total 


STAMPS;  STAMP  DUTIES  603 

amount  of  the  money  at  any  time  secured."  It  will  be  noticed 
that  the  duty  does  not  depend  on  the  amount  released,  but  on  the 
amount  secured ;  and  in  practice,  as  long  as  any  property  remains 
subject  to  the  security,  a  discharge  of  part  is  treated  as  a  deed  not 
otherwise  charged,  and  liable  to  a  duty  of  10s.,  unless  ad  valorem  recon- 
veyance duty  would  be  less  (see  Munro  v.  Commissioners  of  I.  JR.,  33 
Scot.  Law  Eep.  152). 

This  head  of  charge  is  applicable  where  the  liability  to  pay  is,  as  it 
were,  enforceable  once  only,  and,  when  enforced,  satisfies  the  obligation. 
Where  there  is  an  obligation  recurrent  at  intervals,  the  first  schedule 
to  the  Stamp  Act,  1891,  contains  another  head  of  charge,  which  is 
applicable,  viz.: — 

"  Bond,  covenant,  or  instrument  of  any  kind  whatsoever,  being  the 
only  or  principal  or  primary  security  for  any  annuity,  or  for  any  sum 
or  sums  of  money  at  stated  periods,  etc.,"  where  the  total  amount 
to  be  ultimately  payable  can  be  ascertained,  the  duty  is  2s.  6d.  per 
cent,  on  the  total  amount ;  when  the  payment  is  for  life  or  an  in- 
definite period,  the  duty  is  2s.  6d.  per  £5  of  the  annuity  or  sum  periodi- 
cally payable. 

Where  an  annuity  is  sold,  the  bond,  covenant,  or  instrument 
securing  it  is  chargeable  as  a  conveyance  on  sale  by  sec.  60.  Where 
the  instrument  secures  it  in  repayment  of  a  loan,  the  provisions  of  sec. 
87  (2)  must  be  considered.  In  both  cases  this  charge  is  expressly  made 
inapplicable.  Where  the  instrument  secures  a  superannuation  annuity, 
subhead  (3)  of  this  charge,  which  defines  superannuation  annuity  for 
the  purpose,  must  be  referred  to.  When  the  "periodical  payment" 
is  either  interest  for  any  principal  sum  secured  by  a  duly  stamped 
instrument  of  rent  reserved  by  a  lease,  no  duty  is  claimable  under  this 
head. 

The  words  "  instrument  of  any  kind  whatever,"  apply  to  instru- 
ments under  hand  only  (see  National  Telephone  Co.  v.  Commissioners  oj 
I.  R.,  [1900]  A.  C.  1),  and  the  charge  applies  to  instruments  creating 
rights  in  personam  as  distinguished  from  those  creating  rights  in  rem 
{e.g.  a  limitation  of  a  rent  charge)  {Kennedy  v.  Commissioners  of  I.  R., 
[1900]  65  J.  P.  9).  But  the  instrument  must  be — (1)  a  "security,"  for 
(2)  "  an  annuity,"  or  (3)  for  "  any  sum  or  sums  of  money  at  stated 
periods."  As  to  (1),  the  most  recent  cases  are  Jones  v.  Commissioners, 
[1895]  1  Q.  B.  484;  Sweetmeat  Automatic  Delivery  Co.,  Ltd.  v.  Commis- 
sioners, [1895]  1  Q.  B.  484  ;  and  National  Telephone  Co.  v.  Commissianers 
of  I.  R.,  ubi  supra ;  as  to  (2),  Lewis  v.  Commissioners,  [1898]  2  Q.  B.  290  ; 
and  Jackson  v.  Commissioners  of  I.  R.,  1902,  50  W.  R.  666 ;  and  as  to  (3), 
Clifford  V.  Commissioners,  [1896]  2  Q.  B.  187. 

Where  one  instrument  chargeable  under  this  head  has  already  been 
given  and  is  duly  stamped,  another  instrument  for  securing  the  same 
annuity  or  periodical  payment  is  liable  to  6d.  in  respect  of  each  2s.  6d. 
of  duty  borne  by  the  instrument  already  given ;  this  is  by  subhead  (2) 
of  the  charge. 

Policies  of  Assurance.  — The  duties  in  policies  of  assurance  will  be 
found  in  Sched.  1  to  the  Stamp  Act,  1891,  grouped  under  these  heads : — 

1.  Policies  of  sea  insurance. 

2.  Policies  of  life  insurance. 

3.  Policies  of  insurance  against  accidents  or  for  payments  during 
sickness,  or  incapacity  from  personal  injury,  or  by  way  of  indemnity 
against  loss  or  damage  of  or  to  any  property. 


604  STAMPS;  STAMP  DUTIES 

As  to  all  three  beads,  the  sweeping  provision  in  sec.  91  of  the  Act 
must  be  borne  in  mind.  "  The  expression  '  policy  of  insurance '  includes 
every  writing  whereby  any  contract  of  insurance  is  made  or  agreed  to 
be  made,  or  is  evidenced,  and  the  expression  insurance  includes  assur- 
ance." This  is  a  general  provision  ;  if  a  contract  is  in  law  one  of  insur- 
ance, and  that  contract  is  evidenced  in  writing,  then  it  is  chargeable 
under  one  or  other  of  the  three  heads  above  given,  unless  the  specific 
definitions  to  be  found  in  sees.  92  and  98  do  not  extend  to  the  risk 
undertaken.  The  effect  of  the  definition  of  policy  of  sea  insurance  is 
that  any  insurance  on  a  ship  or  vessel,  or  its  machinery,  tackle,  or 
furniture,  or  any  goods  on  board  any  ship  or  vessel,  or  on  freight  or 
other  lawfully  insurable  interest  in  any  ship  or  vessel,  or  on  goods  for  a 
transit,  including  not  only  a  sea  risk,  but  any  other  risk  incidental  to 
the  transit,  and  whether  the  consideration  for  undertaking  the  risk  was 
exclusively  paid  for  the  contract  of  insurance,  or  in  part  for  freight  or 
otherwise,  falls  within  the  charge. 

The  legislature  appears  to  have  thought  it  necessary  to  safeguard 
the  payment  of  these  duties  by  stringent  provisions.  Sec.  93  invali- 
dates a  contract  for  sea  insurance,  unless  expressed  in  a  policy  of  sea 
insurance,  provides  that  a  time  policy  of  sea  insurance  may  not  be 
made  for  a  period  exceeding  twelve  months,  and  that  a  voyage  policy 
must  specify  the  particular  risk,  names  of  underwriters,  and  sum  insured, 
and  the  period  must  not  exceed  twelve  months.  But  a  time  policy 
containing  a  continuation  clause,  as  defined  by  the  Finance  Act,  1901, 
1  Edw.  VII.  c.  7,  s.  11,  is  not  invalid  merely  on  the  ground  that  by  reason 
of  the  continuation  clause  it  may  become  available  for  a  period  exceed- 
ing twelve  months — a  policy  containing  such  a  continuation  clause  is 
liable  to  an  additional  stamp  duty  of  6d.,  and  if  the  risk  caused  by  the 
continuation  clause  attaches  and  a  new  policy  is  not  issued  covering  the 
risk,  the  continuation  clause  is  to  be  deemed  a  new  and  separate  con- 
tract of  sea  insurance  expressed  in  the  policy  in  which  it  is  contained, 
and  the  policy  may  be  and  is  to  be  stamped  in  respect  of  that  contract 
within  thirty  days  after  the  risk  has  attached.  If  the  risk  attaches  the 
duty  in  respect  of  it  is  voyage  policy  duty.  Sec.  95  prevents  policies 
of  sea  insurance  being  stamped  after  signing  or  underwriting  by  anyone, 
except  as  therein  provided,  save  on  payment  of  a  penalty  of  £100.  Sec. 
97  imposes  a  fine  of  £100  on  anyone  who  enters  into  a  contract  of  sea 
insurance,  either  as  insurer  or  insured,  and  does  not  express  it  or  see 
that  it  is  expressed  in  a  duly  stamped  policy  of  sea  insurance;  any 
broker  negotiating  any  sea  insurance  (not  expressed  in  a  duly  stamped 
policy)  not  only  incurs  a  fine  of  £100,  but  also  loses  all  claim  to 
brokerage  or  for  money  expended;  further,  any  person  making  or 
issuing  a  copy  of  a  policy  of  sea  insurance,  unless  there  is  in  existence 
an  original  policy  duly  stamped,  incurs  a  tine  of  £100.  Sec.  98  detines 
a  "  policy  of  life  insurance,"  and  "  policy  of  insurance  against  accident," 
and  is  explained  by  58  &  59  Vict.  c.  16,  s.  13.  As  to  policies  of  insur- 
ance against  accident,  reference  should  be  made  to  the  case  of  Lancashire 
Insurance  Co.  v.  Commissioners  of  I.  R.,  [1899]  1  Q.  B.  353,  and  the 
subsequent  amending  sec.  11  of  the  Finance  Act,  1899,  62  &  63  Vict, 
c.  9,  and  sec.  8  of  Finance  Act,  1907,  7  Edw.  vii.  c.  13.  Sec.  99  enables 
the  duty  of  Id.  payable  on  policies  (other  than  policies  of  sea  or  life 
assurance)  to  be  denoted  by  an  adhesive  stamp  duly  cancelled.  Sec.  100 
imposes  a  penalty  of  £20  on  receiving  or  taking  credit  for  premium 
without  executing  a  duly  stamped  policy  or  paying  money  on  a  policy 


STAMPS;  STAMP  DUTIES  605 

(other  than  a  policy  of  sea  insurance,  the  provisions  as  to  which  have 
been  already  set  out)  not  duly  stamped. 

Settlements. — Settlement  duty  is  5s.  per  £100  on  the  amount  or  value 
of  the  property  settled.  The  charge  is  contained  in  sec.  1  of  the  Act, 
and  Sched.  1,  tit.  "  Settlement." 

Given  the  two  following  conditions,  the  charge  applies : — 

1.  An  instrument  whereby  there  is  sealed,  or  agreed  to  be  settled, 

2.  Any  definite  and  certain  principal  sum  of  money  or  any  definite 
and  certain  amount  of  stock  or  any  security. 

With  regard  to  the  first  condition,  it  must  be  pointed  out  that  there 
is  no  definition  of  "  settlement  "  in  the  Act,  and  the  question  remains 
how  far  the  creation  of  successive  interests  is  or  is  not  indicated  by  the 
legislature's  use  of  the  terms  "  settled  or  agreed  to  be  settled."  On  the 
other  hand,  bearing  in  mind  sec.  5  (the  effect  of  which  has  been  already 
referred  to)  and  the  provisions  of  sec.  106,  it  would  seem  that  where  the 
true  transaction  between  parties  would,  if  expressed  in  writing,  be 
chargeable  as  a  settlement,  any  transfer  for  in  part  effectuating  that 
transaction  attracts  settlement  duty,  unless  such  duty  has  already  been 
paid  on  some  other  instrument  recording  (in  part)  the  same  transaction. 
It  is  by  the  express  terms  of  the  charge  made  immaterial  whether  the 
instrument  is  voluntary  or  upon  any  good  or  valuable  consideration 
other  tlian  a  hond-fide  pecuniary  consideration — words  which  are,  it  is 
believed,  treated  in  practice  as  excluding  instruments  chargeable  under 
the  Act  as  conveyances  on  sale,  but  which  if  literally  construed  would 
— {a)  extend  to  instruments  not  so  chargeable;  (h)  not  include  some 
instruments  so  chargeable.  Further,  there  is  an  express  exemption 
from  settlement  duty  in  favour  of  any  instrument  exercising  a  special 
power  of  appointment  where  duty  has  been  duly  paid  in  respect  of  the 
same  property  on  the  settlement  creating  the  power  or  the  grant  of 
representation  of  any  will  or  testamentary  instrument  creating  the 
power  (see  on  the  scope  of  this  exemption  Russell  v.  Commissioners  of 
I.  B.,  [1902]  1  K.  B.  142).  With  regard  to  the  second  condition,  the 
only  subject-matter  falling  within  the  charge  is  money,  stock,  or 
securities.  Sec.  122  directs  what  "  money "  and  "  stock  "  are  to  be 
deemed  to  include,  and  sec.  6  determines  the  mode  of  valuation  (and  see 
sec.  12  of  the  Finance  Act,  1899,  62  &  63  Vict.  c.  9).  Given  that  the 
subject-matter  of  the  "  settlement "  is  money,  it  is  immaterial  whether 
it  is  charged  or  chargeable  on  land,  or  to  be  laid  out  in  the  purchase  of 
land  or  not,  but  it  must,  to  attract  duty,  be  in  fact  at  the  date  of  the 
settlement  money,  stock,  or  security,  and  in  the  case  of  money  or  stock, 
it  must  be  a  definite  and  certain  principal  sum  of  money  or  definite  and 
certain  amount  of  stock.  These  words  have  been  interpreted  in  Onslow 
V.  Commissioners,  [1891]  1  Q.  B.  238,  to  refer  to  the  ascertainability  of 
the  subject-matter,  and  not  to  the  nature  of  the  settlor's  right  or  title 
to  it.  It  is,  as  the  effect  of  the  cases,  immaterial  that  the  settlor's  title 
to  stocks  or  securities,  or  a  share  in  them,  is  contingent  or  defeasible  by 
persons  not  subject  to  his  control,  or  by  circumstances  independent  of 
human  control.  But  it  is  necessary  that  the  subject-matter  should  be 
ascertainable,  and  where,  if  the  contingency  were  to  happen  at  the  date 
of  the  deed  it  can  be  determined  by  the  statutory  method  of  valuation 
what  would  be  the  quantum  receivable  by  the  trustees  of  the  settlement, 
the  interest  is  definite  and  certain.  It  is  also  the  effect  of  the  Act  that 
a  reversionary  interest  for  purposes  of  settlement  duty  is  assessed  on 
the  value,  at  the  date  of  the  deed,  of  the  moneys,  stocks,  and  securities 


606  STANDING  OEDEES 

then  constituting  the  fund,  and  no  deduction  is  or  can  be  made  by 
reason  of  the  existence  or  probable  continuance  of  the  life  interest. 
When  there  are  several  instruments  for  effecting  the  settlement  of  the 
same  property,  and  the  settlement  duty  exceeds  10s.,  the  settlement 
duty  is  only  to  be  paid  once,  and  the  other  instruments  are  to  be 
charged  with  the  duty  of  10s.  (s.  106),  but  instruments  brought  into 
being  after  the  date  of  the  settlement  and  not  forming  part  of  the 
transaction  then  intended  to  be  effected,  are  not  within  this  provision 
{Russell  V.  Commissioners  of  I.  R,  [1902]  1  K.  B.  142). 

Sec.  104  provides  for  payment  of  duty  where  a  policy  of  life  insur- 
ance is  settled.  Where  there  is  no  provision  for  keeping  up  the  policy 
the  duty  is  on  the  value  of  the  policy  at  the  date  of  the  instrument, 
otherwise  duty  is  payable  on  the  amount  of  the  policy  and  any  bonuses 
which  have  been  added  to  it.  Sec.  105  provides  that  an  instrument 
chargeable  as  a  settlement  in  respect  of  money,  stock,  or  security,  is  not 
to  be  charged  with  further  duty  by  reason  of  its  operation  in  transferring 
or  securing  the  subject-matter  of  settlement,  and  also  when  the  subject- 
matter  settled  is  a  reversionary  interest  in  money,  stock,  or  security, 
exempts  a  covenant  (by  the  person  entitled  in  possession  to  the  interest 
or  income  of  such  money,  stock,  or  securities),  for  payment  of  a  yearly 
sum  during  the  continuance  of  his  interest,  from  covenant  duty  to  the 
extent  of  4  per  cent,  on  the  value  of  the  stock  so  settled. 

^Authorities. — For  the  older  law,  Tilsley  on  the  Stamp  Laws.  For 
the  present  law,  Alpe,  Digest  of  the  Law  Relating  to  the  Stamp  Duties ; 
Highmore,  The  Stamp  Acts,  1891 ;  Griffith,  Digest  of  Stamp  Duties.'] 

Standing'  Orders. — Standing  orders  are  rules  prepared  by 
each  House  of  Parliament  for  the  regulation  of  its  own  procedure.  In 
so  far  as  the  subject  comes  within  the  scope  of  the  present  work  it  will 
be  found  dealt  with  under  the  following  heads : — Parliamentary  Agent  ; 
Parliamentary  Committees  ;  Parliamentary  Deposits  ;  Private  Bill 
Legislation  ;  and  Eeferees,  Court  of. 

StannariCS.-^As  to  the  Stannary  Courts  in  Devonshire  and 
Cornwall,  see  Mines  and  Minerals. 

Staple. — This  term  was  applied  to  those  towns  to  which  were 
brought  for  export  the  principal  raw  commodities  of  England,  especially 
wool,  wool-pelts,  leather,  tin,  and  lead.  The  merchants  of  the  staple 
had  a  monopoly  in  the  export  of  these  commodities,  acquired  at  least  as 
early  as  the  reign  of  Edward  i.  The  staple  towns  in  England  and  abroad 
were  appointed  by  the  King,  and  from  time  to  time  changed.  The  trade 
there  was  under  the  management  of  a  mayor  and  constables,  originally 
appointed  by  the  King,  but  subsequently  by  the  mayor  of  the  town 
virtute  officii.  The  staplers  were  {temp.  Edw.  ill.)  formed  into  a  guild 
merchant,  which  still  exists,  though  its  trade  functions  have  disappeared 
with  its  monopoly  (see  Merchants  of  Staple  v.  Bank  of  England,  1888, 
21  Q.  B.  D.  160).  The  materials  for  history  of  the  subject  are  collected 
by  Gross,  Gild  Merchant,  i.  146,  and  the  statutes  affecting  the  staple  are 
tabulated  in  the  Index  to  the  Statutes  of  the  Eealm.  See  Companies, 
Chartered  ;  Corrector  of  the  Staple. 

Staple  Inn. — See  Inns  of  Court. 


STATE  607 

Staple y  Statute. — See  Statute  Staple. 
Star  Chamber.— See  Privy  Council. 

State. — On  the  continent  of  Europe  the  word  State  is  currently 
used  to  distinguish  the  central  political  authority  from  all  local  authorities. 
In  England  it  is  not  popularly  used  in  this  sense,  nor  need  it  perhaps  be 
used  at  all  in  connection  with  domestic  institutions.  It  is  nevertheless 
frequently  employed  in  a  vague  way  by  politicians  as  meaning  sometimes 
the  governing  authority  as  opposed  to  the  governed;  at  others  the 
secular  authorities  as  opposed  to  the  ecclesiastical ;  at  others,  again,  as 
in  contrast  to  the  temporary  mechanism  for  governing  the  State — the 
Government. 

Professor  Sheldon  Amos  says :  "  The  State  implies  the  body  politic, 
that  is,  the  nation  regarded  as  a  subject  of  Government.  This  last 
meaning  is  most  in  accord  with  the  results  of  historical  analysis,  though 
serious  omissions  in  the  full  and  proper  connotation  of  the  term — as  in 
respect  of  territorial  limits,  and  of  continuous  identity  in  point  of  time 
— are  not  avoided.  Lastly,  there  is  the  special  meaning  of  the  term 
appropriate  to  the  constitution  of  the  United  States  of  North  America 
and  the  technical  meaning  known  to  international  law,  according  to 
which  the  State  is  an  entity  having  certain  recognisable  predicates  such 
as  independence  of  other  entities  like  itself,  and  the  power  of  self- 
government  in  respect  of  determining  upon  and  controlling  its  own 
internal  organisation "  (Amos,  The  Science  of  Politics,  London,  1883, 
p.  67). 

The  modern  notion  of  the  State,  the  same  writer  adds  elsewhere, 
was  indeed  not  brought  into  clear  consciousness  till  a  number  of  parallel 
States  presented  themselves  side  by  side,  and  each  of  them  by  enforcing 
its  own  claims  against  the  others  manifested  to  itself  and  to  the  world 
its  own  personality,  independence,  and  integral  unity  {ibid.,  at  p.  64). 

This  is  practically  the  only  precise  sense  in  which  the  word  is  used 
in  England.     It  is  thus  properly  a  term  of  international  law. 

Hobbes,  in  the  Leviathan,  defines  the  State,  or,  as  he  calls  it,  the 
Commonwealth,  as  "one  person  for  whose  acts  a  great  multitude  by 
mutual  covenants,  one  with  another,  have  made  themselves  every  one 
the  author,  to  the  end  he  may  use  the  strength  and  means  of  them  all 
as  he  shall  think  expedient  for  their  peace  and  common  defence." 

"  For  all  the  purposes  of  international  law,"  says  Phillimore,  "  a  Slate 
may  be  defined  to  be  a  people  permanently  occupying  a  fixed  territory, 
bound  together  by  common  laws,  habits,  and  customs  into  one  body 
politic,  exercising,  through  the  medium  of  an  organised  Government, 
independent  sovereignty  and  control  over  all  persons  and  things  within 
its  boundaries,  capable  of  making  peace  and  war,  and  of  entering  into 
international  relations  with  other  communities  "  {International  Law,  i. 
p.  81). 

The  form  of  a  State  may  be  monarchical  or  republican. 

Phillimore's  definition  is  rather  that  of  a  sovereign  State  than  State 
generally,  whereas  between  sovereign  States  and  natural  persons  there 
are  groups  of  the  latter  not  on  an  equality  with  the  former,  of  which 
the  various  German  States  and  the  Papal  See,  with  their  limited  right 
of  legation  and  other  attributes  of  independency  are  examples.  They 
may  be  classed  together  as  semi-sovereign  States,  though  they  may  and 
do  differ  in  their  particular  condition  and  rights  (see  Westlake,  Inter- 
national Law,  p.  86). 


608  STATE 

"  By  a  sovereign  State,"  says  Mr.  Montague  Bernard,  "  we  mean  a 
community  or  number  of  persons  permanently  organised  under  a  sove- 
reign Government  of  their  own,  and  by  a  sovereign  Government  we 
mean  a  Government,  however  constituted,  which  exercises  the  power  of 
making  and  enforcing  law  within  a  community,  and  is  not  itself  subject 
to  any  superior  Government.  These  two  factors,  the  one  positive,  the 
other  negative,  the  exercise  of  power  and  the  absence  of  superior  control, 
compose  the  notion  of  sovereignty  and  are  essential  to  it "  {Neutrality  of 
Great  Britain  during  the  American  Civil  War). 

It  will  be  observed  that  this  definition  does  not  specifically  include 
a  condition  that  the  community  shall  occupy  any  determinate  territory. 
As  a  fact,  a  modern  sovereign  State  is  hardly  conceivable  without  a 
defined  territorial  area.  It  is  true  that  Grotius  says :  "  There  are 
commonly  two  things  that  are  subject  to  sovereignty  (imperium) :  first, 
persons,  which  alone  sometimes  sujfices,  as  an  army  of  men,  women,  and 
children,  seeking  new  plantations;  secondly,  lands,  which  are  called 
territory  "  {De  Jure  belli  ac  pad,  ii.  3,  4). 

The  only  instance  of  a  non-territorial  sovereign  State  in  our  time, 
however,  would  be  a  rebel  army  wandering  from  place  to  place  and 
recognised  as  a  belligerent,  which  is  tantamount  to  being  recognised  as 
a  State.     As  to  rebellion  and  revolution,  see  CiviL  Wak. 

As  regards  the  position  of  semi-sovereign  States,  Professor  Rivier 
writes: — "The  subordination  of  a  semi-sovereign  State  is  manifested 
either  exclusively  or  at  all  events  principally  in  its  external  relations. 
The  sovereignty  may  be  internally  complete;  on  the  other  hand,  it 
may  be  greatly  circumscribed.  Such  a  State  has  to  transact  all  its 
foreign  affairs  through  the  foreign  office  of  its  suzerain ;  another  such 
State  may  even  have  the  right  of  legation,  and  the  right  to  conclude 
treaties  of  every  nature,  the  suzerain  possessing  only  a  temporary  right 
of  veto.  .  .  .  Other  States  are  free  to  accredit  consuls-general  to  such 
States  who  may  receive  the  title  of  agents  or  even  diplomatic  agents,  but 
are,  however,  really  only  consuls.  It  seems  natural  that  a  semi- 
sovereign  State  should  have  an  agent  at  the  suzerain's  seat  of  govern- 
ment .  .  .  and  that  the  suzerain  on  his  side  should  have  a  permanent 
functionary  at  the  Court  of  the  semi-sovereign. 

"  As  a  general  rule,  the  semi-sovereign  has  not  the  right  to  under- 
take an  offensive  war.  But  the  right  cannot  be  denied  to  him  to 
defend  himself;  it  is  certain,  moreover,  that  in  attacking  him  one 
attacks  the  suzerain.  And  since  the  semi-sovereign  State  has  the  right 
of  defensive  warfare,  it  must  also  possess  the  right  to  make  peace" 
{Droit  des  gens,  i.  82). 

The  position  of  the  present  German  Empire  is  a  mixed  one.  To  the 
imperial  authority  belongs  the  making  of  all  treaties  of  peace,  alliance, 
or  other  political  objects,  all  commercial  or  postal  treaties,  and  all 
treaties  relating  to  copyright,  extradition,  domicile,  emigration,  or  the 
administration  of  civil  or  criminal  law.  But  diplomatic  relations 
between  foreign  Powers  and  the  States  of  the  empire  are  not  entirely 
excluded ;  thus  England  has  ministers  resident  or  charges  d'affaires  at 
many  of  the  German  capitals  (see  Westlake,  International  Law,  p.  88  ; 
see  Pope  as  to  the  international  position  of  the  Papal  See). 

The  position  of  the  Ottoman  Porte  towards  subject  States  has 
never  been  a  clear  one.  In  Egypt  their  rights  have  dwindled  to  the 
payment  of  tribute.  Turkey  is  still  supposed  to  be  legally  the  suzerain 
of  a  country  under  a  British  protectorate.     Cyprus  is  "  assigned  "  by 


STATE  609 

Turkey  "  to  be  occupied  and  administered  by  England,"  with  a  view 
to  the  Sultan  carrying  out  certain  reforms  for  the  protection  of  the 
Christians  and  other  subjects  of  the  Porte  in  his  dominions  (see 
Treaty  of  Constantinople  of  June  4,  1878).  Austria-Hungary,  under 
the  Convention  of  April  21,  1879,  occupied  Bosnia  and  Herzegovina 
"  without  affecting  the  rights  of  sovereignty  of  His  Majesty  the  Sultan 
on  these  provinces."  The  political  situation  recently  created  (Septem- 
ber 1908)  will,  however,  shortly  receive  consideration  in  a  Conference 
of  the  Powers. 

Bulgaria  by  Art.  1  of  the  Treaty  of  Berlin,  1878,  "  is  constituted 
an  autonomous  and  tributary  principality  under  the  suzerainty  of  His 
Imperial  Majesty  the  Sultan,"  This  clause,  as  M.  Rolin-Jacquemyns 
remarks,  is  obscure,  an  obscurity  which  is  not  dispelled  by  Art.  8, 
which  provides  that — "  Les  traites  de  commerce  et  de  navigation  ainsi 
que  toutes  les  conventions  et  arrangements  conclus  entre  les  puissances 
etrang^res  et  la  Porte,  et  aujourd'hui  en  vigueur,  sont  maintenus  dans 
la  principaut^  de  Bulgarie  et  aucun  changement  n'y  sera  apport6  a 
regard  d'aucune  puissance  avant  qu'elle  y  ait  donn6  son  consentement " 
<Art.  8). 

Turkey  did  not  consider  her  suzerainty  to  involve  her  in  the  war 
of  1885  between  Servia  and  her  vassal,  though  the  latter  humbly  dis- 
claimed both  the  right  of  war  and  that  of  treating  direct  with  the  enemy 
(see  Bulgarian  despatches  to  Porte  of  16th,  17th,  and  18th  November 
1885).  M.  Rolin-Jacquemyns  sums  up  his  view  of  the  position  of 
Bulgaria  as  follows : — "  The  term  '  under  the  suzerainty  of  the  Porte,' 
used  without  apparent  cause  or  justification  in  the  first  article  of  the 
Treaty  of  Berlin,  has  to  be  interpreted  sensu  stridissimo — 

"  1st.  Because  the  idea  which  it  expresses  is  foreign  to  modern  law  ; 

"  2nd.  Because  even  in  feudal  law  the  suzerainty  of  the  lord  was  not 
incompatible  with  the  sovereignty  of  the  vassal ; 

"  3rd.  Because  the  word  '  suzerainty  '  which  in  the  Treaty  of  Paris 
could  still  be  considered  as  giving  in  r6sum6  the  historic 
law  of  the  Danubian  principalities,  does  not  correspond  to 
any  idea  of  this  kind  when  applied  to  the  principality  of 
Bulgaria,  which  has  no  history  previous  to  1878. 

"  From  this  it  may  be  adduced  in  a  general  way  that  the  Bulgarian 
State  and  its  chief  can  exercise  actively  and  passively  all  the  rights  of 
sovereignty  not  formally  denied  to  them  by  the  Treaty  of  Berlin  "  (Bevue 
de  droit  Intcj'national,  vol.  xviii.  p.  521).  This  opinion  is  of  special 
interest  in  view  of  the  proposed  Conference  of  the  Powers  on  the 
international  questions  arising  out  of  recent  political  events  in  the 
Balkan  States. 

See  further  as  to  the  recognition  of  States,  the  article  Belligerent. 

The  question  of  what  constitutes  an  independent  sovereign  for  the 
purpose  of  determining  his  privileges  as  such  in  England  was  recently 
before  our  Courts  on  the  occasion  of  an  application  for  an  order  for 
substituted  service  {Mighell  v.  Sultan  of  Johore,  [1894]  (C.  A.)  1  Q.  B. 
149).  The  motion  to  set  aside  that  order  having  come  before  Mr.  Justice 
Wright,  sitting  as  vacation  judge,  he  adjourned  the  hearing  and  caused 
a  communication  to  be  made  to  the  Secretary  of  State  for  the  Colonies, 
in  order  to  ascertain  the  status  of  the  defendant  (Sultan  of  Johore). 
In  answer  a  letter  from  the  Colonial  Office  informed  the  judge  that 
Johore  was  an  independent  State  and  territory  in  the  Malay  Peninsula, 
and  that  the  defendant  was  the  present  sovereign  ruler  thereof;  that 
VOL.  XIIL  39 

/ 


610  STATEMENT  OF  CLAIM 

the  relations  between  the  Sultan  and  Her  Majesty  were  relations  of 
alliance  and  not  of  suzerainty  and  dependence  under  a  treaty  (December 
11,  1885) ;  that  the  Sultan  had  raised  and  maintains  armed  forces  by  sea 
and  land,  had  organised  a  postal  system,  dispensed  justice  through 
regularly  constituted  Courts,  had  founded  orders  of  knighthood,  con- 
ferred titles  of  honour,  and,  generally  speaking,  exercised  without 
question  the  usual  attributes  of  a  sovereign  ruler.  By  the  treaty  it 
was  agreed  that  the  governor  of  the  Straits  Settlements  should  'protect  the 
Sultaiis  tei^itory  from  external  hostile  attack,  and  for  that  purpose  Her 
Majesty's  officers  were  to  have  access  at  all  times  to  the  waters  of  the 
State  of  Johore ;  and  by  Art.  6  of  the  treaty  the  Sultan  hound  himself 
not  to  negotiate  treaties  or  to  enter  into  any  engagement  with  any  foreign 
State. 

Yet  he  was  declared  by  the  Colonial  Office  not  to  be  in  a  state  of 
suzerainty. 

The  whole  question  of  what  constitutes  an  independent  State  or 
sovereign,  sovereignty  and  suzerainty,  is  involved  in  great  uncertainty. 

[See,  further,  Wheaton,  Elements  of  International  Law,  4th  Eng.  ed., 
1904,  chap,  ii.,  "  Nations  and  Sovereign  States."] 

Statement  of  Claim. — The  statement  of  claim  is  the  first 
step  in  the  pleadings  in  an  action  in  the  High  Court.  It  was  substituted 
by  the  Judicature  Acts  and  Eules  for  the  former  bill  in  the  Court  of 
Chancery  or  declaration  in  the  Courts  of  common  law.  In  the  indorse- 
ment of  claim  which  is  required  to  be  made  on  every  writ  of  summons, 
a  short  statement  of  the  nature  of  the  claim  of  the  plaintiff  must  be 
made,  but  it  is  not  necessary  that  it  should  set  forth  the  precise  ground 
of  complaint,  or  the  precise  remedy  or  relief  to  which  the  plaintiff  con- 
siders himself  entitled  (Order  3,  rr.  1,  2).  But  the  plaintiff  may,  if  he 
thinks  fit,  in  certain  cases  specially  indorse  the  writ  with  a  statement 
of  his  claim  (see  Special  Indorsement),  and  if  he  does  so,  such  indorse- 
ment is  deemed  to  be  the  statement  of  claim,  and  no  further  statement 
of  claim  may  be  delivered.  Where  the  writ  contains  only  a  general 
indorsement,  and  an  order  is  made  for  the  delivery  of  pleadings  upon 
the  summons  for  directions,  which  the  plaintiff  is  required  to  issue 
within  fourteen  days  after  appearance  (see  Order  30),  the  plaintiff  must 
deliver  a  statement  of  claim  within  the  time  (if  any)  prescribed  by  such 
order,  and  if  no  time  be  prescribed,  then  within  the  time  prescribed  by 
the  Eules  (see  Order  20 ;  Pleading  ;  Time).  The  statement  of  claim 
must  contain  a  statement  in  a  summary  form  of  the  material  facts  on 
which  the  plaintiff  relies,  but  not  the  evidence  by  which  such  facts  are 
to  be  proved  (Order  19,  r.  4);  must  state  specifically  the  relief  claimed, 
either  simply  or  in  the  alternative,  and  where  relief  is  sought  in  respect 
of  several  distinct  claims  or  causes  of  complaint  founded  upon  separate 
and  distinct  grounds,  must  state  them,  as  far  as  may  be  separately  and 
distinctly  (Order  20,  rr.  6  and  7) ;  and  must  in  all  cases  in  which  it 
is  proposed  that  the  trial  shall  be  elsewhere  than  in  Middlesex,  show 
the  proposed  place  of  trial  (Order  20,  r.  5).  Before  1883  a  statement 
of  claim  usually  concluded  with  a  general  claim  for  such  relief  as  the 
Court  should  consider  the  plaintiff  entitled  to ;  but  it  is  not  now 
necessary  to  ask  for  general  or  other  relief  {ibid.,  r.  6). 

See  further,  the  article  under  the  title  Pleading. 

Statement   of    Defence. — The  statement  of  defence  is. 


STATE  TKIALS  611 

the  second  step  in  the  pleadings  in  an  action  in  the  High  Court,  and 
takes  the  place,  under  the  Judicature  Acts  and  Eules,  of  the  former 
pleas  in  the  Courts  of  common  law  or  answer  in  the  Court  of  Chancery. 
Where  a  statement  of  claim  is  delivered,  the  defendant  must  deliver 
his  statement  of  defence  within  ten  days  from  the  delivery  of  the 
statement  of  claim,  or  from  the  time  limited  for  appearance,  whichever 
is  last,  and  where  a  statement  of  claim  is  not  delivered  nor  required, 
the  statement  of  defence  (if  any)  must  be  delivered  within  ten  days 
after  appearance,  unless  in  either  case  the  time  is  extended  by  the 
Court  or  by  consent  (Order  21,  rr.  6,  7).  Where  leave  to  defend  is 
given  under  Order  14,  the  statement  of  defence  (if  any)  must  be 
delivered  within  the  time  limited  by  the  order  giving  leave  to  defend, 
or  if  no  time  is  limited,  within  eight  days  after  such  order  {ibid.,  r.  8). 
In  an  action  for  a  debt  or  liquidated  demand  in  money,  comprised  in 
Order  3,  r.  6,  a  mere  denial  of  the  debt  is  inadmissible ;  if  the  action  is 
on  a  bill  of  exchange,  promissory  note  or  cheque,  a  defence  in  denial 
must  deny  some  matter  of  fact;  e.g.  the  drawing,  making,  indorsing, 
accepting,  presenting,  or  notice  of  dishonour  of  the  bill  or  note ;  if  the 
action  is  for  goods  bargained  and  sold,  or  goods  sold  and  delivered,  the 
defence  must  deny  the  order  or  contract,  the  delivery,  or  the  amount 
claimed ;  if  for  money  had  and  received,  it  must  deny  the  receipt  of 
the  money,  or  the  existence  of  the  facts  which  are  alleged  to  make  such 
receipt  by  the  defendant  a  receipt  to  the  use  of  the  plaintiff  {ibid.,  rr.  1, 
2,  and  3),  See  further,  as  to  defences  generally,  and  as  to  counter- 
claims and  the  defence  of  set-off,  the  articles  on  Pleading  and  Set-off. 

Statement  of  Facts. — See  Commercial  Court. 

State  Trials.  —  The  first  collection  of  State  Trials  was 
published  in  four  volumes  in  1719.  The  anonymous  editor,  it  after- 
wards appeared,  was  one  Thomas  Salmon,  an  historical  writer,  but  no 
lawyer.  Second  and  third  editions  in  six  volumes  were  brought  out 
in  1730  and  1742  under  the  supervision  of  Sollom  Emlyn,  of  Lincoln's 
Inn,  the  learned  editor  of  Hale's  Pleas  of  the  Crown ;  his  preface  con- 
tains a  critical  survey  of  the  condition  of  English  law  much  in  advance 
of  his  times.  A  seventh  and  eighth  volume  had  previously  appeared 
in  1735,  and  a  ninth  and  tenth  followed  in  1766,  but  the  names  of  the 
editors  are  not  given.  A  fourth  edition  in  ten  volumes  folio  appeared 
in  1776,  and  is  often  spoken  of  as  Hargrave's,  after  the  celebrated 
lawyer  who  wrote  the  preface,  though  only  a  reprint  of  the  materials 
already  published,  rearranged  in  chronological  order.  Hargrave  dis- 
claimed all  responsibility  for  these  ten  volumes;  but  in  1781  he 
embodied  the  results  of  his  own  researches  in  an  eleventh  supplemental 
volume,  containing  many  important  constitutional  cases  until  then 
omitted.  The  fifth  and  current  edition  of  the  State  Trials  in  thirty- 
three  volumes  was  published  between  the  years  1809  and  1826. 
Cobbett  appears  as  editor  on  the  title-page  of  the  first  volume,  but 
is  said  to  have  contributed  nothing  but  his  name.  The  real  editor  was 
Thomas  Bayley  Howell,  of  Lincoln's  Inn,  who  gave  himself  up  entirely 
to  the  work.  Before  his  death,  in  1815,  he  had  published  twenty-one 
volumes,  coming  down  to  1781,  and  adding  over  two  hundred  new 
articles  and  numerous  notes.  His  son,  Thomas  Jones  Howell,  brought 
the  work  down  to  1820  in  vols.  22-33 ;  and  a  careful  index,  compiled 
by  Mr.  David  Jardine,  was  afterwards  published  in  a  separate  volume. 


612  STATIONERS'  HALL 

Apart  from  their  legal  and  constitutional  interest,  the  State  Trials,  as 
the  late  Mr.  Justice  Stephen  and  Mr.  Russell  Lowell  have  pointed  out, 
contain  an  inexhaustible  store  of  good  reading,  and  present  a  singularly 
vivid  picture  of  bygone  speech  and  manners.  Some  of  them  scarcely 
come  within  the  widest  definition  of  a  State  Trial,  but  were  inserted, 
as  stated  in  one  of  the  prefaces,  on  account,  either  of  "  the  curiosity  of 
the  fact  inquired  into,"  or  of  "  the  figure  and  station  "  of  the  persons 
concerned.  In  the  reports  of  criminal  trials  the  rules  of  criminal  pro- 
cedure and  evidence  may  be  traced  almost  to  their  source.  On  the 
other  hand,  several  of  the  constitutional  cases,  including  some  of  those 
edited  by  Hargrave,  cannot  be  studied  to  full  advantage  until  they 
have  been  re-edited  in  such  a  manner  as  to  bring  them  up  to  modern 
standards  of  accuracy  and  knowledge,  and  to  remove  the  tedious 
prolixity  and  irrelevance  which  make  them  well-nigh  unreadable. 

New  Series. — The  expediency  of  bringing  the  collection  down  to 
more  modern  times  had  often  been  urged,  notably  by  the  late  Mr. 
Justice  Stephen  and  Mr.  Frederic  Harrison;  at  length,  in  1885,  the 
Lord  Chancellor,  under  a  scheme  prepared  by  the  Parliamentary 
Counsel,  the  late  Lord  Thring,  nominated  a  Committee,  including 
several  judges,  high  officials,  and  others,  to  supervise  the  undertaking. 
Under  their  direction  eight  volumes  appeared  bringing  the  work  down 
to  the  year  1858.  The  first  three  volumes  were  edited  by  Sir  John 
Macdonell,  one  of  the  Masters  of  the  Supreme  Court,  and  the  subse- 
quent volumes  by  Mr.  John  E.  P.  Wallis,  sometime  Advocate-General, 
and  now  a  Puisne  Justice  of  the  Supreme  Court  of  Madras.  In  the  first 
volume  of  the  series,  State  Trials  were  defined  as  meaning,  in  general, 
trials  relating  to  offences  against  the  State,  or  illustrative  of  the  law 
relating  to  State  Officers  of  high  rank;  but  in  practice  the  selection 
has  been  extended  to  cases  raising  important  points  of  constitutional 
and  international  law.     See  also  1  St.  Tri.  1345  w. 

Stationers'  Hall. — See  Copyright. 

Stationery  Office.  —  A  Government  department  which 
supplies  stationery  to,  and  controls  most  of  the  printing  required  by. 
Parliament  and  the  various  Government  offices.  The  department  was 
instituted  in  1786  "  with  a  view  to  economy  and  efficiency,"  the  system 
previously  in  operation  for  the  various  Government  offices  obtaining 
their  supplies  of  stationery  from  holders  of  patents  having  been  found 
both  expensive  and  inefficient.  The  department  was  placed  under  the 
control  of  a  Superintendent  of  Stationery,  who  at  first  acted  merely  as 
an  agent,  purchasing  the  requisite  supplies  of  stationery  and  recovering 
the  cost  from  the  votes  of  the  departments  supplied,  with  an  additional 
sum  to  cover  the  cost  of  his  own  office.  In  1823  the  practice  of  taking 
a  separate  vote  for  stationery  and  printing  was  begun;  and  now, 
practically  all  business  connected  with  printing,  binding,  publication, 
and  with  the  supply  of  stationery  of  any  kind  for  the  public  depart- 
ments is  transacted  in  this  office,  the  expenses  of  which  are  met 
principally  by  the  annual  parliamentary  vote,  but  also  by  receipts  from 
the  sale  of  .Government  publications,  and  by  repayment  from  several 
departments  in  respect  of  printing  work  and  stationery  not  covered 
by  votes.  The  department  is  managed  by  a  Controller,  appointed  by 
the  Treasury,  at  a  salary  rising  from  £1200  to  £1500  and  a  staff  (see 
First  Report  of  the  Controller  of  Her  Majesty's  Stationery  Office,  1881). 


STATUTE  FAIE  613 

By  letters  patent  dated  October  3,  1888,  the  Controller  of  the 
Stationery  Office  was  appointed  printer  of  all  Acts  of  Parliament. 

Documents  printed  under  the  superintendence  of  the  Stationery 
Office  have  the  like  evidential  effect  as  documents  purporting  to  be 
printed  by  the  Government  printer,  or  the  King's  printer,  or  a  printer 
authorised  by  His  Majesty  (Documentary  Evidence  Act,  1882,  s.  2). 

Status  quo. — The  state  in  which  things  actually  are.  An 
order  is  sometimes  made  that,  provisionally,  certain  things  are  to 
remain  in  statu  quo,  that  is,  they  are  to  be  kept  in  the  state  in  which 
they  are  at  the  time  when  the  order  is  made.  Sometimes  also,  as  in 
the  phrase,  status  quo  ante  helium,  the  words  are  used  retrospectively. 
The  phrase  just  cited  is  often  used  in  diplomacy  ;  it  means  the  condition 
in  which  things  were  immediately  before  the  outbreak  of  hostilities 
between  two  countries. 

Statute. — See  Act  of  Parliament;  Local  Act;  Personal 
Act,  etc. 

For  the  general  law,  see  Act  of  Parliament.  It  is  proposed  here  to 
deal  merely  with  statutes  as  affecting  the  royal  prerogative.  In  Bacon's 
Abridgment  ("  Prerogative,"  E,  5)  it  is  stated  that  where  a  statute  is 
general,  and  thereby  any  prerogative,  right,  title,  or  interest  is  divested 
or  taken  from  the  Sovereign,  the  latter  is  not  bound  unless  there  are 
express  words  in  the  statute  to  include  him.  So  the  Bankruptcy  Act, 
1869,  32  &  33  Vict.  c.  62,  was  held  not  to  be  binding  on  the  Crown  {In 
re  Henley  &  Co.,  1878,  9  Ch.  D.  469);  though  the  Bankruptcy  Act,  1883, 
46  &  47  Vict.  c.  52,  is  so  binding  to  the  particular  extent  specified  in 
it  {In  re  Oriental  Bank,  1884,  28  Ch.  D.  643).  Bacon  {uhi  supra)  gives 
a  list  of  cases  on  various  statutes.  In  particular,  the  case  of  Magdalen 
College,  1615,  11  Co.  Rep.  666,  as  to  the  18  Eliz.  (1575),  c.  2,  is  im- 
portant, from  which  it  appears  that  even  such  comprehensive  words  as 
"  any  person  or  persons,  bodies  politic  or  corporate,"  and  the  like,  will 
not  affect  the  Sovereign.  The  reason  for  the  rule  is  that  it  would  be 
detrimental  to  the  public  interest  to  allow  constructions  and  implica- 
tions of  the  subject  to  impair  the  strength  of  the  executive  without  its 
own  express  consent. 

On  the  other  hand,  if  an  Act  of  Parliament  is  made  for  the  public 
good,  the  advancement  of  religion  and  justice,  and  to  prevent  injury  and 
wrong,  and  does  not  interfere  with  the  established  rights  of  the  Crown, 
it  is  said  that  it  will  be  as  binding  on  the  Sovereign  as  on  his  subjects 
(case  of  Magdalen  College,  supra,  at  p.  71).  And  the  Sovereign  may  take 
advantage  of  an  Act  of  Parliament,  though  not  particularly  named  in  it 
{idem,  ibid. ;  case  of  Fine  Levied  by  the  King,  1604,  7  Co.  Eep.  32). 

Statute -barred  Debts. — A  statute-barred  debt  may  be 
revoked  in  one  of  three  ways — (1)  By  acknowledgment  of  the  debt; 
(2)  by  part  payment ;  (3)  by  promise  to  pay  it.  The  subject  is  fully 
dealt  with  under  its  proper  heading — Limitations  (Statutes  of). 

Statute  Fair. — This  term  is  used  to  distinguish  between 
markets  and  fairs  held  under  charter  and  prescription  and  the  half- 
yearly  gatherings  of  servants  for  hiring,  at  which  the  Statutes  of 
Labourers  were  proclaimed,  giving  the  rates  for  hiring  fixed  by  justices 
(see  Simpson  v.  Wells,  1872,  L.  R.  7  Q.  B.  214). 


614  STATUTE  LABOUR 

The  latter  did  not  rest  on  prescription  or  custom,  nor  did  the  gather- 
ing give  to  persons  attending  to  sell  or  buy  any  of  the  rights  incident  to 
a  fair  by  grant  or  prescription. 

Though  the  Statutes  of  Labourers  are  all  repealed,  hiring  fairs 
continue  in  some  places  by  the  name  of  "statute  fairs"  or  "mops." 

Statute  Labour. — In  the  case  of  highways  in  England 
repairable  by  a  parish,  the  inhabitants  were  required  by  statute  to  do 
so  much  work  at  certain  seasons  of  the  year  towards  repairing  the  high- 
way, according  to  their  position,  or  to  pay  a  composition.  The  latest 
Act  enforcing  the  duty  (13  Geo.  ill.  c.  78)  was  repealed  by  the  Highway 
Act,  1835,  5  &  6  Will.  iv.  c.  50,  and  repairs  are  now  effected  by  persons 
employed  by  the  surveyor  of  highways,  and  the  cost  is  defrayed  by  a 
highway  rate,  or  in  the  case  of  main  roads,  out  of  the  county  rate.  This 
provision  corresponded  to  the  corvie  which  existed  in  Egypt  from  time 
immemorial  till  abolished  by  the  British  Government.  A  similar  obli- 
gation to  pay  in  labour  existed  under  copyhold  tenure,  and  until  recently 
under  Irish  leases.  Statute  labour  was  in  Scotland  created  by  5  Geo.  i. 
c.  30,  and  continued  until  1883  (41  &  42  Vict.  c.  51,  s.  33). 

Statute  La^V  Revision. — In  theory  a  British  statute  can- 
not grow  obsolete  or  fall  into  desuetude,  as  could  Scots  Acts.  But  with 
changed  conditions,  and  the  growth  of  subsequent  legislation,  many 
enactments  not  expressly  repealed  are  virtually  put  out  of  action,  or 
grow  inapplicable  to  modern  conditions.  But  until  1556  no  methodical 
system  for  ridding  the  statute-book  of  dead  or  useless  enactments  was 
adopted,  although  Lord  Bacon  had  proposed  such  revision;  and  some 
Acts  of  James  i.  seem  to  have  been  passed,  at  his  suggestion,  with  this 
object.  From  time  to  time,  on  the  passing  of  consolidation  Acts,  there 
has  been  a  sweeping  clearance  of  prior  enactments,  e.g.  in  1828  and  1861, 
as  to  the  criminal  law. 

A  Statute  Law  Revision  Committee  was  constituted  about  1859  of 
judges  and  high  Government  officials,  and  under  its  supervision  have 
been  passed  a  series  of  Acts  to  promote  the  excision  from  the  statute- 
book  of  Acts  which  have  ceased  to  be  in  force  or  have  become  unneces- 
sary. A  list  of  these  Acts,  beginning  in  1861,  is  given  in  the  official 
index  to  the  statutes,  under  the  title  Statute  Law  Revision.  They 
deal  with  seven  classes  of  Acts : — 

1.  Expired,  i.e.  temporary  Acts  which  have  ceased  (under  37  Geo.  iii. 
c.  70)  and  have  not  been  revived,  nor  continued  by  annual  Expiring  Laws 
Continuation  Acts,  or  otherwise. 

2.  Spent,  i.e.  which  have  worked  the  purpose  for  which  they  were  passed, 
e.g.  repealing  Acts  (as  to  which,  see  52  &  53  Vict.  c.  63,  s.  11 ;  Gvn/nne  v. 
Drewitt,  [18U]  2  Ch.  61Q). 

3.  Repealed  in  general  terms,  i.e.  without  specific  reference  to  them  (see 
56  &  57  Vict.  c.  61,  s.  2). 

4.  Verbally  repealed,  i.e.  inconsistent  with,  or  rendered  nugatory  by,  later 
Acts  (see  The  Dilano,  [1895]  P.  40;  West  Ham  Churchwardens  v.  Fourth  City 
Mutual  Building  Society,  [1892]  1  Q.  B.  654). 

5.  Superseded,  e.g.  where  their  effect  is  equally  obtained  by  a  later  Act. 

6.  Obsolete,  where  the  mischief  of  the  old  statute  has  ceased  to  exist  or 
the  remedy  is  inapplicable  to  modern  circumstances. 

7.  Unnecessary,  where  statutory  authority  is  not  now  needed  for  the 
object  of  the  Act  in  question. 


STATUTE  MEECHANT  615 

The  Bills  which  propose  to  effect  this  revision  are  submitted  to  a 
joint-committee  of  both  Houses,  and  when  introduced  contain  a  column 
of  explanations  of  the  reasons  for  repeal,  which  are  more  valuable  than 
the  Acts,  and  are  not  printed  for  the  guidance  of  lawyers  when  the  Acts 
are  passed. 

The  saving  clauses  are  drawn  so  as  to  effect  a  minimum  of  disloca- 
tion by  the  repeals,  and,  after  various  experimental  savings,  are  now  in 
the  main  those  set  out  in  sec.  38  of  the  Interpretation  Act,  1889,  52  &  53 
Vict.  c.  63. 

The  revision  has  for  some  years  been  carried  out  with  the  object  of 
preparing  a  cheap  revised  official  edition  of  the  statutes,  based  on  the 
statutes  of  the  realm,  omitting  Acts  of  a  local  or  personal  nature  which 
had  been  printed  among  the  public  general  Acts.  For  this  purpose  the 
revisers  have  availed  themselves  of  the  powers  of  abbreviations  created 
by  the  Interpretation  Act,  1889,  and  the  Short  Titles  Acts  of  1893  and 
1896  (see  56  &  57  Vict.  c.  3) ;  and  have  also  deemed  it  desirable  to  excise 
preambles  of  Acts  not  wholly  repealed.  This  excision  has  a  literary 
effect  only,  and  does  not  affect  the  construction  of  the  surviving  parts 
of  the  Act  (see  Hawke  v.  Dunn,  [1897]  1  Q.  B.  579,  583). 

The  result  of  the  method  is  to  make  it  necessary  for  lawyers  to 
resort  to  the  full  text  of  the  Act  whenever  any  question  of  interpreta- 
tion arises. 

The  work  of  revision  is  done  with  great  care  and  accuracy,  but 
occasionally  the  wrong  Act  is  repealed  or  an  Act  is  repealed  by  inadvert- 
ence (see  51  &  52  Vict.  c.  57 ;  60  &  61  Vict.  c.  24,  s.  7). 

The  Statute  Law  Committee  has  also  in  certain  instances  supervised 
the  preparation  of  consolidation  Acts,  such  as  the  Coroners  and  Sheriffs 
Acts  of  1887,  and  supervises  the  official  index  to  the  statutes,  containing 
a  chronological  table  showing  all  repeals  or  amendments  of  any  Act  by 
subsequent  legislation,  and  containing  an  index  of  the  contents  of  all 
public  general  Acts  in  force.  See  further,  Consolidation  of  Statutes, 
vol.  iii.  p.  468. 

{^Authorities. — Maxwell  on  Statutes,  4th  ed. ;  Hardcastle  on  Statutes, 
4th  ed.  by  Craies,  336.] 

Statute  lYIerchant. — A  form  of  security  at  one  time  much 
employed,  but  now  long  obsolete.  It  was  introduced  first  by  the  Statute 
of  Acton  Burnell,  but  it  was  more  fully  dealt  with  by  the  Statute  of 
Merchants,  13  Edw.  i.  st.  3 — from  which  the  name  of  the  security  is 
derived — which,  after  reciting  that  merchants  who  theretofore  had  lent 
their  goods  to  divers  persons,  had  fallen  into  poverty  because  there  was 
no  speedy  remedy  provided  for  the  recovery  of  their  debts,  enacted  that 
a  merchant  to  whom  a  debt  was  owing  might  cause  his  debtor  to  appear 
before  the  mayor  or  chief  warden  of  the  city  or  town,  or  before  one 
of  the  clerks  appointed  for  the  purpose,  and  acknowledge  the  debt  and 
the  date  of  its  repayment,  whereupon  the  recognisance  was  enrolled, 
and  an  obligation  written  by  the  clerk  and  signed  with  the  seal  of  the 
debtor,  and  also  with  the  King's  seal,  provided  for  the  purpose.  A 
speedy  remedy  was  provided  if  the  debt  was  not  duly  paid.  The 
merchant  brought  his  obligation  to  the  mayor  or  clerk,  and  if  it  was 
found  that  the  debt  had  been  duly  acknowledged  and  the  day  of 
payment  had  expired,  a  warrant  was  issued  for  the  arrest  and  imprison- 
ment of  the  debtor ;  and  if,  after  the  lapse  of  a  certain  time,  he  took 
no  steps  to  discharge  the  debt,  his  goods  and  lands  (which  became 


616  STATUTES  OF  THE  EEALM 

bound  as  from  the  date  of  the  recognisance)  were  delivered  to  the 
creditor,  the  lands  to  be  held  till  out  of  the  rents  and  profits  the  debt 
was  paid.  Originally  designed  for  the  benefit  of  merchants  only,  it  in 
later  times  came  into  general  use,  owing  to  the  speedy  process  for 
obtaining  payment  introduced.  The  Statute  of  Merchants,  after  having 
been  long  obsolete,  was  repealed  by  the  Statute  Law  Eevision  Act,  1863, 
See  Statute  Staple. 

On  account  of  the  summary  method  by  which  payment  of  a  statute 
merchant  could  be  enforced,  the  security  was  sometimes  called  a  pocket 
judgment. 

Statutes  of  the  Realm. — The  collection  of  statutes 
known  as  the  Statutes  of  the  Eealm  was  printed  by  command  of 
George  iii.  in  pursuance  of  an  address  of  the  House  of  Commons. 
It  was  prepared  from  original  records  and  authentic  manuscripts  under 
the  direction  of  the  Record  Commission. 

These  statutes  cover  the  period  from  20  Hen.  ill.  (1235)  to  the  end 
of  the  reign  of  Queen  Anne,  13  Anne  (1713).  The  first  volume  was 
published  in  1810. 

The  Statute  Rolls,  previous  to  the  beginning  of  the  reign  of  Henry  vii., 
were  sometimes  in  Latin  and  sometimes  in  Erench ;  subsequently  they 
were  uniformly  in  English.  The  earliest  printed  collection  of  statutes 
is  an  alphabetical  abridgment  supposed  to  have  been  published  before 
1481.  The  latest  statute  in  such  collection  is  of  the  year  1455  (33 
Hen.  VI.).  The  statutes  passed  in  the  only  Parliament  of  Richard  ill. 
were  printed  in  French  soon  after  they  were  passed.  This  was  the  first 
instance  of  a  sessional  publication.  The  same  course  was  observed  in 
the  reigns  of  Henry  vii.  and  Henry  viii.  Erom  that  time  the  statutes 
appear  to  have  been  regularly  printed  and  published  at  the  end  of  each 
session.  At  the  time  of  the  publication  of  the  Statutes  of  the  Realm, 
no  complete  collection  had  ever  been  printed  containing  all  the  matters 
which  at  different  times  and  by  different  editors  had  been  published 
as  statutes.  The  Statutes  of  the  Realm  contain  all  instruments  which 
were  included  in  the  collections  of  statutes  printed  previous  to  the 
edition  of  Hawkins  (1735),  they  having  been  for  a  long  series  of  years 
accepted  as  statutes  in  Courts  of  law.  There  are  also  inserted  all 
matters  of  a  public  nature  purporting  to  be  statutes,  although  not 
previously  printed  in  any  general  collection  of  statutes.  The  dis- 
tinction between  public  Acts  and  private  Acts  is  for  the  first  time 
specifically  stated  on  the  inrolment  in  Chancery  in  the  31st  year  of 
Henry  viii.  Private  Acts  after  that  date  are  only  noticed  by  the 
insertion  of  their  title.  The  printed  translation  of  the  statutes 
previous  to  Henry  vii.  is  taken  from  Cay's  edition,  1751,  supple- 
mented by  other  authorities.  A  series  of  the  Charters  of  the 
Liberties  of  England,  from  the  reign  of  Henry  I.  (1101)  to  the  reign 
of  Edward  i.  (1301),  is  prefixed  to  the  collection  of  statutes.  The  text 
of  the  revised  editions  of  the  statutes  is  based  on  the  edition  of  the 
Statutes  of  the  Realm. 

The  Interpretation  Act,  1889,  s.  35,  provides  that  in  a  reference  to 
Acts  of  Parliament  in  accordance  with  that  section,  such  reference, 
in  the  case  of  statutes  not  included  in  any  revised  edition,  printed 
by  authority,  and  passed  before  the  reign  of  George  i.,  is  to  be  read 
as  referring  to  the  edition  prepared  under  the  direction  of  the  Record 
Commission. 


STATUTORY  ORDER,  AND  STATUTORY  RULES,  ETC.  617 

[Aiithorities. — The  Statutes  of  the  Realm,  printed  by  command  of 
King  George  lil.,  in  pursuance  of  an  address  of  the  House  of  Commons 
of  Great  Britain,  from  original  records  and  authentic  manuscripts  (see 
Introduction  in  vol.  i.);  The  Statutes,  revised  edition,  vol.  i. ;  Hardcastle 
on  Statutes.]  ^  - 

Statute  Staple. — A  security  for  money,  very  similar  to  a 
statute  merchant  (q.v.),  introduced  by  the  Statute  27  Edw.  III.  st.  2,  c.  9, 
which  provided  that  in  every  staple — that  is,  a  great  public  mart — 
there  should  be  a  seal  provided  for  recognisances  by  debtors,  taken 
by  the  mayor  of  the  staple  in  the  presence  of  the  constables  of  the 
staple,  or  one  of  them.  On  default  in  payment  by  the  debtor,  execu- 
tion issued  against  him  much  in  the  same  way  as  on  a  statute  merchant, 
except  that  while  in  the  case  of  the  latter  the  debtor's  property  could 
only  be  taken  after  the  lapse  of  a  certain  time,  execution  could  issue 
at  once  in  the  case  of  the  former.  Like  the  Statute  of  Merchants,  the 
Statute  27  Edw.  iii.  st.  2,  c.  9,  was  repealed  by  the  Statute  Law  Revision 
Act,  1863. 

Statutory  Declaration.— See  Oaths. 

Statutory  Order,   and   Statutory  Rules  and 

Orders. — In  this  article  "Statutory  Order"  is  employed  to  designate 
all  ordinances  made  whether  by  the  Sovereign  in  Council,  a  Department 
of  the  Executive,  a  Local  Authority,  or  any  other  corporation  or  person 
under  powers  expressly  delegated  by  Parliament  (see  Delegated  Legis- 
lation); and  the  sections  of  Acts  which  effect  such  specific  delegations 
are  referred  to  as  "statutory  powers."  The  ordinances  whicli  thus 
derive  authority  are  very  numerous,  and  until  1890,  when  the  first 
official  keys  to  them  were  published,  no  means  of  ascertaining  the  extent 
to  which  the  statutory  power  had  been  exercised  was  available. 

Three  years  later  the  Rules  Publication  Act,  1893,  56  &  57  Vict, 
c.  66,  was  passed  which  was  directed  to  two  quite  different  objects. 

Sec.  1  of  the  Act  provides  that  as  regards  one  group  of  Statutory 
Orders  (Rules  made  by  certain  Departments  under  statutory  powers 
directing  that  the  Rules  when  made  are  to  be  laid  before  Parliament), 
forty  days'  notice  of  the  intention  to  make  them  and  of  the  place 
where  copies  can  be  obtained  must  be  given.  Sec.  2  supplements  this 
by  providing  for  a  temporary  exemption  from  sec.  1  in  case  of  urgency. 

The  Statutory  Orders  in  this  group  are  hereinafter  referred  to  as 
"Section  One  Rules." 

Sec.  3  of  the  Act  provides  for  the  systematic  printing  and 
numbering  of  another  group  of  Statutory  Orders,  i.e.  such  as  are  declared 
by  regulations  made  by  the  authorities  specified  by  subs.  3  to  be  within 
its  provisions. 

The  first  {i.e.  the  sec.  1)  group  is  much  the  least  numerous.  The  second 
(i.e.  the  sec.  3)  group  is  much  greater,  and  embraces  (see  the  Regulations 
under  the  section.  Statutory  Rules  and  Orders,  1894,  p.  415)  all  exercises 
of  statutory  powers  which  are  legislative  and  not  merely  executive, 
and  which  are  made  and  not  merely  confirmed  by  a  Government 
Department. 

It  therefore  covers  Orders  as  well  as  Rules,  and  the  Statutory  Orders 
in  this  group  are  here,  as  in  the  official  publications,  referred  to  as 
"  Statutory  Rules  and  Orders." 


618     STATUTOKY  ORDER,  AND  STATUTORY  RULES,  ETC. 

Orders  which  appoint  particular  persons,  or  which  adjust  local  ques- 
tions of  account,  are  not  "  Statutory  Rules  and  Orders  "  as  thus  defined, 
as  they  are  executive  and  not  legislative,  nor  are  the  majority  of  by- 
laws, as  they  are  made  by  local  authorities  and  merely  confirmed  by 
Central  Departments.  On  the  other  hand,  by-laws,  such  as  those  under 
the  Military  Lands  Act  relating  to  rifle  ranges,  which  are  made  and  not 
merely  confirmed  by  the  Secretary  of  State,  are  Statutory  Rules  and 
Orders. 

It  is  to  be  observed  that  this  definition  also  excludes  the  statutes  of 
the  universities  and  public  schools,  and  pilotage  by-laws,  and  the  schemes 
of  the  Ecclesiastical  Commissioners. 

The  two  groups  partly  overlap :  thus  the  Supreme  Court  and  the 
Bankruptcy  Rules  fall  into  both  groups.  County  Court  Rules  are 
Statutory  Rules  and  Orders  but  not  "  Section  One  Rules ; "  pilotage  by- 
laws are  in  the  reverse  position. 

Statutory  Rules  and  Orders  are  divided  into  two  main  classes : — 

1.  Public  and  general,  which  relate  to  the  whole  of  one  of  the  three 
kingdoms,  or  to  some  colony  or  dependency  of  the  empire,  or  to  the 
administration  of  justice,  whether  in  a  superior  or  local  Court ;  and 

2.  "  Local,"  which  merely  affect  some  specified  localities,  or  confer 
powers  on  a  particular  local  authority,  and  vary  the  general  law  to  that 
extent.  Orders  as  to  the  close  time  for  wild  birds  and  as  to  fisheries, 
and  the  vast  majority  of  the  Orders  of  the  Local  Government  Board 
under  the  Poor  Law  and  Local  Government  Acts,  belong  to  this  last 
class. 

The  practice  of  delegating  by  Act  of  Parliament  to  the  Crown  or 
some  Department  the  power  of  carrying  out  subordinate  legislation  is 
comparatively  modern.  The  Statute-Book  prior  to  the  last  century 
affords  only  about  thirty  instances  of  such  statutory  powers.  Of  these 
early  instances  a  power  conferred  on  the  Crown  in  1533-34  (25  Hen.  viii. 
c.  21,  s.  23)  of  annulling  within  a  specified  period  a  whole  Act  by  letters 
patent  may  be  referred  to  as  a  curious  instance  of  parliamenary 
delegation ;  and  the  statutory  power  of  incorporating  the  Bank  of  Eng- 
land (5  &  6  Will,  and  Mary,  c.  20,  s,  19),  and  the  power  given  to  the 
common-law  judges  of  making  rules  for  the  prisons  attached  to  their 
respective  Courts  (32  Geo.  ii.  c.  28,  s.  6),  are  further  instances  of  these 
early  powers. 

Of  late  years  this  practice  of  delegation  has  greatly  increased,  and  has 
been  used  as  a  means  of  relieving  Parliament  of  the  labour  of  enacting 
detailed  rules  or  regulations  which  formerly  found  a  place  either  in  the 
body  of  statutes  or  in  schedules.  The  greatest  extension  of  it  which  has 
ever  been  effected,  or  even  proposed,  is  to  be  found  in  the  Irish  Local 
Government  Act,  1898,  61  &  62  Vict.  c.  37,  which  gave  power  to  the 
Lord  Lieutenant,  by  Order  in  Council,  to  apply  and  adapt  to  Irish 
requirements  the  English  and  Scottish  Acts. 

The  Local  Government  (Application  of  Enactments)  Order,  1898, 
and  the  Local  Government  (Adaptation  of  Irish  Enactments)  Order, 
1899  (Statutory  Rules  and  Orders,  1898,  No.  1120,  and  1899,  No.  44), 
issued  under  this  Act,  are  practically  Acts  of  the  legislature  enacted 
under  the  powers  thus  delegated. 

Statutory  Rules  and  Orders  vary  greatly  in  importance.  Nearly  the 
whole  of  the  procedure,  Court  fees,  and  arrangements  as  to  officers,  in 
the  supreme  and  inferior  Courts  of  each  of  the  three  kingdoms,  are  now 
regulated  by  them,  and  there  is  power  thereby  to  repeal  or  amend  any 


STATUTOEY  OEDER,  AND  STATUTOEY  EULES,  ETC.  619 

statutes  regulating  procedure.  The  regulations  as  to  poor  law  relief  are 
also  to  be  found  in  Statutory  Eules  and  Orders,  and  not  in  the  Statu te- 
Book,  and  the  elections  of  local  authorities  are  also  carried  out  under 
Statutory  Eules  and  Orders.  Postal  rates  and  money  and  postal  orders 
are  also  regulated  by  such  rules. 

The  proclamations  under  statutory  powers  are  few  in  number  (see 
Proclamation),  but  amongst  Statutory  Eules  and  Orders  are  a  variety  of 
important  Orders  of  the  King  in  Council  which  are  referred  to  in  detail 
in  the  article  Okdek  in  Council. 

Commencing  with  the  year  1890,  annual  volumes  have  been  published 
by  authority,  giving  in  extenso  every  Statutory  Eule  and  Order  of  a 
public  and  general  character  which  has  been  issued  during  the  year,  and 
containing  classified  lists  (arranged  on  the  same  principle  as  the  lists  of 
local  Acts  in  the  annual  volumes  of  statutes)  of  the  local  statutory  orders 
of  each  year. 

There  have  been  also  published  an  edition  in  13  vols,  of  "  The  Statu- 
tory Eules  and  Orders  Eevised,"  containing  all  public  and  general  Orders 
which  were  in  force  on  December  31,  1903,  and  an  Index  of  Statutory 
Eules  and  Orders,  revised  to  December  31,  1906,  and  which  states  what 
statutory  powers  of  making  Orders  have  been  conferred,  and  how  such 
powers  have  been  exercised.  In  the  revised  edition  as  in  the  annual 
volumes  the  Eules  and  Orders  are  grouped  under  titles  and  sub-titles, 
which  are  the  headings  and  sub-headings  of  law  to  which  the  Orders 
relate,  the  sequence  of  the  titles  being  alphabetical.  Each  title  corre- 
sponds to  a  title  in  the  official  Index  to  the  Statutes  in  force,  and  to  a 
title  in  the  Index  to  the  Statutory  Eules  and  Orders  in  force,  so  that  any 
person  referring  to  the  same  title  in  the  three  works  can  ascertain  what 
power  of  making  Orders  exists,  and  whether,  and  how,  such  power  has 
been  exercised.  In  the  revised  edition  each  title  has  a  separate  pagina- 
tion, and  can  be  obtained  separately  apart  from  the  rest  of  the  edition. 
The  Index  to  Statutory  Eules  and  Orders  gives  all  the  statutory  powers 
of  making  Statutory  Orders,  whether  the  authorised  Ordinance  would  be 
a  "  Section  One  Eule,"  a  "  Statutory  Eule  and  Order,"  or  outside  either 
group.  But  the  statements  as  to  "  exercise  "  are  confined  to  Statutory 
Eules  and  Orders.  Tables  showing  the  effect  of  the  year's  legislation  by 
Statutory  Eule  and  Order,  both  on  statutes  and  on  previous  Statutory 
Eules  and  Orders,  are  added  to  each  year's  annual  volume. 

Under  the  Eules  Publication  Act,  above  referred  to,  all  statutory 
rules  are  now  numbered  consecutively  for  each  year,  and  (with  the 
exception  of  certain  local  orders,  such  as  the  purely  local  orders  of  the 
Local  Government  Board)  printed  and  put  on  sale  to  the  public. 
Monthly  and  quarterly  lists  of  such  rules  are  issued  by  the  Stationery 
Office,  from  which  the  statutory  rules  of  the  current  year  can  be  traced. 
On  the  completion  of  the  year  the  lists  in  the  annual  volume  above 
referred  to  afford  complete  means  of  reference. 

In  certain  cases  (e.g.  Orders  in  Council  under  the  Extradition  Acts 
and  the  Orders  under  the  Irish  Local  Government  Act  above  referred 
to)  the  statutory  power  provides  that  the  validity  of  the  statutory  orders 
shall  not  be  questioned  in  any  legal  proceedings  whatever.  As  regards 
other  rules,  the  House  of  Lords  have  decided  in  a  Scottish  case  (Institute 
of  Patent  Agents  v.  Lockwood,  [1894]  A.  C.  347)  that  where  the  statutory 
power  provides  that  the  statutory  rules  take  effect  as  if  enacted  in  the 
Act,  and  shall  be  laid  before  both  Houses  of  Parliament,  and  further 
provides  that  if  within  forty  days  from  such  submission  either  House 


620  STATUTS 

resolve  that  the  rules  shall  be  annulled  and  that  such  rules  shall  from  such 
resolution  be  of  no  effect,  and  no  such  resolution  has  been  passed,  it  is 
not  competent  for  any  Court  to  go  into  the  question  of  the  validity  of 
the  rules.  Where  the  statutory  power  does  not  contain  this  or  a  similar 
provision,  the  Court  can  canvass  a  rule,  and  determine  whether  or  not 
it  was  within  the  power  of  those  who  made  it  (per  Lord  Herschell, 
ibid.). 

Therefore  a  statutory  rule  issued  under  a  statutory  power,  which 
provides  that  the  rule  shall  take  effect  "  as  if  enacted  in  the  Act,"  but 
does  not  go  on  to  provide  a  period  for  Parliamentary  consideration,  or 
against  questioning  by  any  Court,  is  not  tantamount  to  an  imperial  Act 
of  Parliament ;  and  such  a  statutory  rule  is  in  this  respect  on  somewhat 
the  same  footing  as  certain  Acts  of  colonial  legislatures  and  foreign 
countries,  which  may  be  questioned  by  Courts,  and  adjudged  ultra  vires 
and  void  if  they  are  repugnant  to  the  constitution  of  the  country 
enacting  them  (see  articles  Colony;  Delegated  Legislation).  Cer- 
tain statutory  rules  have  been  declared  invalid  by  the  Courts;  e.g.  the 
regulations  of  November  4,  1863,  as  to  practice  and  procedure  on  the 
Revenue  side  of  the  Exchequer,  which  were  declared  invalid  by  the 
House  of  Lords  {A.-G.  v.  Sillem,  1864,  10  H.  L.  C.  704;  11  E.  E.  1200). 

It  should  be  added  that,  besides  Statutory  Rules  and  Orders,  the 
Prerogative  Orders  (see  Pkerogative  Legislation)  as  to  colonial  con- 
stitutions and  currency  and  as  to  appeals  to  the  Judicial  Committee,  are 
included  in  the  revised  edition  of  Statutory  Rules  and  Orders,  and  are 
given  in  editor's  appendixes  to  the  annual  volumes  of  Statutory  Orders 
above  referred  to. 

StalutS. — A  word  met  with  in  cases  involving  French  law — the 
equivalent  of  articles  of  association  of  a  share  company. 

Stay  of  Execution.— See  Execution. 

Stay  of  Proceedings. 

TABLE 

1.  Frivolous  and  Vexatious  Actions 

2.  Second  Action    .... 

3.  Writ  Improperly  Issued     . 

4.  Parliamentary  Papers 

5.  Proceedings  in  Lunacy 

6.  Under    the     Arbitration     Act, 

1889 

7.  Remitting    an    Action    to    the 

County  Court        . 

Every  Court  has  an  inherent  power  to  prevent  any  abuse  of  its 
process ;  it  may  therefore  refuse  to  entertain  any  action  which  is  extor- 
tionate or  oppressive  {Egbert  v.  Short,  [1907]  2  Ch.  205,  approved  in  In 
re  Norton's  Settlement,  [1908]  1  Ch.  471).  Every  Court  has  also  inherent 
power  to  temporarily  suspend  the  proceedings  in  any  action  where  the 
plaintiff  is  in  default,  or  has  disobeyed  any  lawful  order  of  the  Court. 
In  addition,  large  powers  of  staying  proceedings  are  given  to  the  Court 
by  various  statutes,  rules,  and  orders. 

1.  Frivolous  and  Vexatious  Actions. — The  Court  has  an  inherent 
jurisdiction   to    stay   all   proceedings   before   it,   which   are   obviously 


OF 

CONTENTS. 

620 

8.  Lis  alibi  pendens;   Concurrent 

621 

Actions         .... 

623 

621 

9.  Matter  Subsequent  . 

624 

622 

10.  On  Default       .... 

624 

622 

11.  On  Bankruptcy 

12.  In  the  Winding-up  of  a  Limited 

625 

622 

Company     .... 

625 

13.  Pending  an  Appeal  . 

625 

623 

Effect  of  a  Stay 

626 

STAY  OF  PEOCEEDINGS  621 

frivolous  or  vexatious  (Reichel  v.  Magrath,  1889,  14  App.  Cas.  665 ; 
Haggard  v.  Pelicier  FHres,  [1892]  A.  C,  at  p.  68 ;  The  Manar,  [1903]  P., 
at  p.  106;  Huntley  (Marchioness  of)  v.  Gashell,  [1905]  2  Ch.  656),  a 
jurisdiction  which  is  recognised  and  extended  by  Order  25,  r.  3.  Thus 
an  action  will  be  stayed  if  it  merely  raises  anew  a  question  which  has 
already  been  decided  between  the  same  parties  by  a  Court  of  competent 
jurisdiction  {MacDougall  v.  Knight,  1890,  25  Q.  B.  D.  1 ;  Stephenson  v. 
Garnett,  [1898]  1  Q.  B.  677;  and  see  Kes  judicata);  and  so  will  any 
frivolous  and  vexatious  action  that  is  incapable  of  proof  and  without 
any  solid  basis  {Lawrance  v.  Lord  Norreys,  1890,  15  App.  Cas.  210; 
Willis  V.  Earl  Howe,  [1893]  2  Ch.  545).  A  still  wider  power  is  given 
to  the  Court  by  Order  25,  r.  4;  for  under  that  rule  a  statement  of 
claim  may  be  struck  out  if  it  discloses  no  reasonable  cause  of  action, 
although  the  action  is  neither  frivolous  nor  vexatious  (South  Hetton  Coal 
Co.  V.  Haswell,  etc..  Coal  and  Coke  Co.,  [1898]  1  Ch.  465 ;  78  L.  T.  8).  But 
the  mere  fact  that  the  plaintiff  has  a  very  weak  case,  which  will  probably 
fail,  is  no  ground  for  striking  out  his  statement  of  claim  (Boaler  v. 
Holder,  1886,  54  L.  T.  298;  Cow^er  v.  Stoneham,  1893,  68  L.  T.  18; 
Anderson  v.  Gorrie,  1892,  36  Sol.  Jo.  256) ;  it  is  otherwise  if  the  action 
must  fail  (Chatterton  v.  Secretary  of  State  for  India,  [1895]  2  Q.  B.  189 ; 
Salaman  v.  Secretary  of  State  for  India,  [1906]  1  K.  B.  613).  By 
the  Vexatious  Actions  Act,  1896,  59  &  60  Vict.  e.  51,  the  Court  can, 
in  certain  circumstances,  order  that  no  legal  proceeding  shall  be  in- 
stituted without  leave  in  any  Court  by  a  person  who  is  proved  to  have 
habitually  and  persistently  instituted  vexatious  legal  proceedings  (see 
In  re  Alexander  Chaffers,  1897,  76  L.  T.  351 ;  (C.  A.)  13  T.  L.  K.  363). 
And  when  either  party  to  an  action  has  made  repeated  frivolous  applica- 
tions to  the  judge  or  Master,  the  Court  has  power  to  make  an  order 
prohibiting  any  further  application  by  him  without  leave  (Grepe  v. 
Loam,  1887,  37  Ch.  D.  168;  Lord  Kinnaird  v.  Field,  [1905]  2  Ch.  306; 
and  see  Abuse  of  Process  ;  Striking  Out). 

2.  Second  Action. — If  the  present  action  is  between  the  same  parties, 
and  raises  the  same  issues  as  a  former  action,  it  may,  as  we  have  seen,  be 
dismissed  altogether  as  frivolous  and  vexatious,  whether  the  plea  of  res 
judicata  can  strictly  be  pleaded  or  not  (MacDougall  v.  Knight,  1890,  25 
Q.  B.  D.  1 ;  Horrocks  v.  Stuhhs,  1896, 74  L.  T.  58).  If,  however,  the  plaintiff 
is  now  suing  in  a  different  character,  though  substantially  by  virtue  of  the 
same  alleged  title,  the  second  action  will  be  stayed  till  the  costs  of  the 
first  action  are  paid  (Order  26,  r.  4;  Martin  v.  Earl  Beauchamp,  1883, 
25  Ch.  D.  12 ;  M'Cabe  v.  Bank  of  Ireland,  1889, 14  App.  Cas.  413).  But 
where  there  is  "  matter  of  fact  fit  to  be  investigated  "  which  the  plaintiff 
is  not  estopped  from  proving,  the  Court  will  refuse  to  stay  the  action 
(Blair  v.  Crawford,  [1906]  1  Ir.  R.  578,  587 ;  and  see  Lea  v.  Thursby, 
1904,  90  L.  T.  265). 

3.  Writ  Improperly  Issued.— II  a  writ  of  summons  has  been  issued  by 
an  uncertificated  solicitor,  or  by  a  solicitor  without  the  consent  of  the 
plaintiff  named  thereon,  the  action  will  be  stayed,  and  the  solicitor  who 
issued  the  writ  will  be  ordered  to  pay  all  costs  occasioned  to  either  the 
plaintiff  or  the  defendant  (Fricker  v.  Van  Gimtten,  [1896]  2  Ch.  649 ; 
Gold  Beefs,  Ltd.  v.  Dawson,  [1897]  1  Ch.  115;  Geiliwger  v.  Gihhs,  [1897] 
1  Ch.  479).  So  if  a  writ  of  summons  has  been  issued  without  the 
authority  or  privity  of  the  solicitor  whose  name  is  indorsed  on  it,  all 
proceedings  upon  that  writ  will  be  stayed,  and  no  further  proceedings 
can  be  taken  in  the  action  without  the  leave  of  the  Court  or  a  judge 


622  STAY  OF  PEOCEEDINGS 

(Order  7,  r.  1).  If  a  writ  be  issued  in  the  name  of  a  firm,  and  the 
plaintiffs  or  their  solicitor  fail  to  comply  with  a  demand  made  in 
writing  by  the  defendant  for  particulars  of  the  names  and  places  of 
residence  of  all  persons  constituting  the  firm,  all  proceedings  will  be 
stayed  (Order  48a,  r.  2).  So  if  a  writ  be  issued  pending  a  reference,  or 
otherwise  contrary  to  good  faith.  Again,  if  an  executor  sue  before 
probate  of  the  will  is  granted  to  him,  the  proceedings  may  be  stayed  till 
the  plaintiff"  has  obtained  probate  and  produced  it  to  the  defendant 
(JVehb  V.  Atkins,  1854,  14  C.  B.  401;  23  L.  J.  C.  P.  96;  Tarn  v.  Com- 
niercial  Bank  of  Sydney,  1884,  12  Q.  B,  D.  294).  So  if  a  plaintiff"  sue  as 
an  administrator,  and,  since  writ,  the  letters  of  administration  granted 
to  him  have  been  revoked,  and  a  fresh  grant  of  administration  made  to 
A.,  all  proceedings  will  be  stayed  on  the  application  of  A.  (Houseman  v. 
Houseman,  1876, 1  Ch.  D.  535).  If  several  causes  of  action  be  improperly 
joined  in  one  writ,  the  defendant  may  apply  to  have  the  action  stayed, 
unless  he  has  waived  the  irregularity  under  Order  70,  r.  2  {Mulkern  v. 
Boercks,  1884,  53  L.  J.  Q.  B.  520;  LloTjd  and  Wife  v.  Great  Western 
Dairies  Co.,  [1907]  2  K.  B.  727). 

4.  Parliamentary  Papers. — Proceedings  for  libel  commenced  against 
persons  who  have  published  reports  and  papers  printed  by  order  of 
either  House  of  Parliament  will  be  stayed  at  once,  under  the  special 
statute  3  &  4  Vict.  c.  9,  on  the  production  of  a  certificate  under  the 
hand  of  the  Lord  Chancellor,  or  the  Speaker,  or  other  officer  of  the 
House  (see  Stockdale  v.  Hansard,  No.  2,  1840, 11  Ad.  &  E.  297;  52  E.  E. 
347). 

5.  Proceedings  in  Lunacy. — If  any  action  is  brought  against  any 
person  for  signing,  or  carrying  out  any  reception  order,  report,  or  certi- 
ficate, or  presenting  any  petition,  or  doing  anything  in  pursuance  of  the 
Lunacy  Act,  1890,  such  action  may,  upon  summary  application  to  the  High 
Court  or  a  judge  thereof,  be  stayed  upon  such  terms  as  to  costs  and  other- 
wise as  the  Court  or  a  judge  may  think  fit,  if  the  Court  or  judge  is  satisfied 
that  there  is  no  reasonable  ground  for  alleging  want  of  good  faith  or 
reasonable  care  (53  &  54  Vict.  c.  5,  s.  330,  subs.  2).  Such  proceedings  are 
in  fact  absolutely  privileged  (Hodson  v.  Pare,  [1899]  1  Q.  B.  455). 

6.  Under  the  Arbitration  Act. — If  the  plaintiff  has  agreed  in  writing 
to  submit  to  arbitration  the  question  which  he  is  raising  by  his  action, 
and  the  dispute  is  one  which,  from  its  nature,  ought  to  be  referred,  the 
defendant  should  at  once,  before  delivering  any  pleading  or  taking  any 
other  step  in  the  proceedings  except  appearing,  apply  to  a  Master  (or  to 
the  County  Court  judge,  if  the  action  be  in  the  County  Court  {Morriston 
Tinflate  Co.  v.  Brooker,  Bore  &  Co.,  [1908]  1  K.  B.  403))  to  stay  the 
action,  under  sec.  4  of  the  Arbitration  Act,  1889.  A  "step  in  the 
proceedings  "  under  this  section  means  some  application  to  the  Court  by 
summons  or  motion  which  would  be  neither  necessary  nor  useful  for 
the  purposes  of  an  arbitration  (see  the  judgment  of  Cave,  J.,  in  Rein  v. 
Btein,  1892,  66  L.  T.,  at  p.  471).  It  does  not  include  an  application  by 
letter  or  notice  from  one  party  to  another,  or  by  correspondence  between 
their  respective  solicitors  {Ives  &  Barker  v.  Willans,  [1894]  2  Ch.  478). 
Hence  writing  to  the  plaintiff"  for  further  time  to  plead  will  not  preclude 
the  defendant  from  applying  under  this  section  {Brighton  Marine  Palace 
and  Pier,  Ltd.  v.  Woodhmise,  [1893]  2  Ch.  486).  The  mere  filing  of 
affidavits  in  answer  to  a  motion  for  a  receiver  is  not  a  step  in  the 
proceedings  within  sec.  4  of  the  Arbitration  Act,  1889  {Zalinoffy.  Ham- 
mond, [1898]  2  Ch.  92),  nor  merely  opposing  a  summons  under  Order  14 ; 


STAY  OF  PROCEEDINGS  623 

though  appealing  from  an  order  made  against  the  defendant,  under 
Order  14,  is  a  "  step ; "  and  so  is  an  application  for  particulars  {Chappell 
V.  North,  [1891]  2  Q.  B.  252);  or  for  security  for  costs  (Adams  v.  Catley, 
1892,  40  W.  R.  570;  66  L.  T.  687;  The  Assimta,  [1902]  P.  150);  or 
taking  out  a  summons  for  further  time  to  plead  (Ford's  Hotel  Co.  v. 
Bartlett,  [1896]  A.  C.  1).  But  if  the  defendant  attend  on  the  hearing  of 
the  plaintiff's  summons  for  directions,  and  any  order  is  made  in  favour 
of  the  defendant  —  even  the  common  form  order  for  the  delivery  of 
pleadings — this  is  a  "step"  (County  Theatres,  etc., Ltd.  v.  Knoivles,\y^Q2'\ 
1  K.  B.  480 ;  Richardson  v.  Le  Maitre,  [1903]  2  Ch.  222).  And,  dfm^tiori, 
the  delivery  of  a  Defence  is  a  step  in  the  proceedings  (West  London 
Dairy  Society  v.  Abhott,  1881,  29  W.  R.  584;  44  L.  T.  376). 

But  even  though  the  plaintiff  has  agreed  in  writing  to  submit  the 
matter  in  dispute  to  arbitration,  and  the  defendant  has  applied  promptly 
for  a  stay,  the  Master  still  has  a  discretion  to  permit  the  action  to 
continue,  if  he  thinks  the  issues  can  be  better  dealt  with  in  open  Court, 
e.g.  if  charges  of  fraud  be  made  (Russell  v.  Russell,  1880,  14  Ch.  D.  471 ; 
Barnes  v.  Youngs,  [1898]  1  Ch.  414 ;  and  see  Belfield  v.  Bourne,  [1894] 
1  Ch.  521).  The  arbitration  will  itself  be  stayed  if  an  action  has  been 
commenced  impeaching  the  validity  of  the  submission  (Kitts  v.  Moore, 
[1894]  1  Q.  B.  253).    See  Reference  of  Action  by  Order. 

7.  Remitting  an  Action  to  the  County  Court. — The  defendant  in  any 
action  of  tort  commenced  in  the  High  Court  may  apply  to  a  Master  at 
chambers  under  sec.  66  of  the  County  Courts  Act,  1888,  51  &  52  Vict. 
c.  43),  for  an  order  staying  proceedings  in  the  action  till  the  plaintiff  give 
security  for  costs,  or  if  he  is  unwilling  or  unable  to  give  such  security, 
that  the  action  be  remitted  for  trial  to  a  County  Court.  But  he  cannot 
obtain  such  an  order  unless,  as  a  first  step,  he  makes  an  affidavit  that 
the  plaintiff  has  no  visible  means  of  paying  the  costs  of  the  defendant, 
should  a  verdict  not  be  found  for  the  plaintiff.  By  the  term  "  visible 
means  "  is  intended  such  means  as  can  be  fairly  ascertained  by  a  reason- 
able person  in  the  position  of  the  defendant ;  not  necessarily  tangible 
property  such  as  the  defendant  could  reach  in  the  event  of  his  obtaining 
judgment  for  his  costs  (Lea  v.  Parker,  1884, 13  Q.  B.  D.  835).  This  section 
applies,  although  the  action  be  one  which  could  not  be  commenced  in 
the  County  Court  (Stokes  v.  Stokes,  1887,  19  Q.  B.  D.  62,  419).  The 
application  can  be  made  at  any  stage  of  the  action,  but  only  by  the 
defendant ;  it  is  usually  made  before  any  Defence  is  delivered.  No  order 
will  be  made  under  this  section  if  the  plaintiff  can  satisfy  the  Master 
that  the  action  is  one  which  can  more  fitly  be  tried  in  the  High  Court 
than  in  the  County  Court  (Critchley  v.  Brown,  1886,  2  T.  L.  R.  238 ; 
Farrer  v.  Lowe,  1889,  5  T.  L.  R.  234 ;  Williams  v.  Mm^ris,  1894, 10  T.  L.  R. 
603).  An  order  will  in  a  proper  case  be  made  under  this  section  against 
a  plaintiff  who  is  a  married  woman,  although  she  cannot  be  ordered  to 
give  security  for  costs  (Critchley  v.  Brown,  supra). 

8.  Lis  alibi  pendens  ;  Concurrent  Actions. — If  concurrent  actions  are 
pending,  say,  in  the  High  Court  and  the  County  Court,  or  any  other 
Court  in  this  country,  raising  the  same  issues,  the  maxim  Nemo  his  vexari 
debet  eadem  causd  applies,  and  the  Court  will,  as  a  rule,  allow  the  action 
which  was  commenced  first  to  proceed,  and  stay  the  other  (but  see 
Thomson  v.  S.  E.  Rly.  Co.,  1882,  46  L.  T.  513 ;  Rechnitzer  v.  Samuel, 
1906,  95  L.  T.  75);  unless,  indeed,  a  decree  has  already  been  made  in 
either  action,  in  which  case  that  decree  will  stand,  but  the  conduct  of 
the  proceedings  will  be  given  to  the  plaintiff  who  first  issued  his  writ 


624  STAY  OF  PEOCEEDINGS 

(see  Parties,  Vol.  X.,  at  p.  362).  If  one  action  be  brought  in  England, 
when  proceedings  are  already  pending  for  the  same  cause  in  Scotland  or 
Ireland,  or  in  any  other  part  of  the  King's  dominions,  the  English  Court 
will  inquire  whether  the  other  Court  has  full  jurisdiction  over  the  whole 
matter,  and  whether  the  proceedings  there  aflord  equal  protection  to  the 
interests  of  the  parties.  If  the  English  Court  be  satisfied  on  these  points,  it 
will  stay  its  own  proceedings,  or  put  the  plaintiff  to  his  election  {Ewinqy. 
Orr-Ewing,  1882,  22  Ch.  D.  456;  1883, 9  App.  Cas.  34 ;  1885, 10  App.  Cas. 
453 ;  Thornton  v.  Thornton,  1886,  11  P.  D.  176 ;  Mutrie  v.  Binney,  1887, 
35  Ch.  D.  614  ;  Christian  v.  Christian,  1898,  78  L.  T.  86 ;  Logan  v.  Bank 
of  Scotland,  [1906]  1  K.  B.  141 ;  the  decision  in  Lord  Dillon  v.  Alvares, 
1789,  4  Ves.  357  ;  31  E.  E.  182 ;  4  E.  R.  206,  "  can  no  longer  be  relied 
on,"  per  Jessel,  M.E.,  22  Ch.  D.,  at  p.  400).  But  the  mere  fact  that  an 
action  is  pending  for  the  same  cause  in  a  foreign  country,  where  the 
forms  of  procedure  and  the  remedies  granted  are  different,  is  not  a 
sufficient  ground  for  staying  an  action  brought  in  England.  A  special 
case  must  be  made  out,  showing  that  the  plaintiffs  proceedings  are 
vexatious ;  or  the  Court  will  allow  both  actions  to  proceed  {McHenry  v. 
Lewis,  1882,  22  Ch.  D.  397 ;  Peruvian  Guana  Co.  v.  Bockwoldt,  1883, 
23  Ch.  D.  225 ;  Hyman  v.  Helm,  1883, 24  Ch.  D.  531 ;  The  Christiansberg, 
1885,  10  P.  D.  141 ;  The  Mannheim,  [1897]  P.  13).  In  a  proper  case 
the  Court  will  even  restrain  the  institution  of  proceedings  in  a  foreign 
country  {Lett  v.  Lett,  [1906]  1  Ir.  E.  618). 

9.  Matter  Subsequent. — If  satisfaction  be  made  after  writ,  or  if  facts 
arise  too  late  to  be  pleaded,  any  party  against  whom  judgment  has  been 
given  may  apply  to  a  Master  for  a  stay  of  execution  or  other  relief 
against  such  judgment  (Order  42,  r.  27),  e.g.  if  goods  sought  to  be 
recovered  have  been  delivered  up,  or  if  the  matter  has  been  compro- 
mised, or  a  release  has  been  executed,  or  payments  made  to  the  plaintiff. 
But  the  mere  fact  that  the  applicant  has  indicted  his  opponent's 
witnesses  for  perjury  is  no  ground  for  a  stay  {Warwick  v.  Bruce,  1815, 
4  M.  &  S.  140). 

10.  On  Default. — If  a  plaintiff  make  default  in  obeying  any  order  of 
the  Court,  his  action  may  be  stayed  till  he  obey  it.  Thus  if  a  plaintiff 
be  ordered  to  give  security  for  costs  (see  Secueity  for  Costs,  ante, 
p.  204)  within  a  time  specified,  and  fails  to  do  so,  his  action  will  be 
stayed  till  he  complies  with  the  order,  and  may  subsequently  be  dis- 
missed {La  Grange  v.  McAndrew,  1879,  4  Q.  B.  D.  210).  So  if  a  plaintiff 
makes  default  in  delivering  particulars,  answering  interrogatories,  or 
making  discovery,  all  proceedings  may  be  stayed  {Davey  v.  Bentinck, 
[1893]  1  Q.  B.  185) ;  but  the  Court  will  not  permit  the  stay  to  be 
continued  for  ever :  if  compliance  be  unreasonably  delayed,  the  action 
will,  "  after  a  proper  interval,"  be  dismissed  {Republic  of  Liberia  v.  Boye, 
1876,  1  App.  Cas.  pp.  143,  144).  An  order  for  particulars  will  not, 
without  express  words  to  that  effect,  operate  as  a  stay  of  proceedings 
(Order  19,  r.  8).  The  mere  fact  that  a  plaintiff  who  has  been  ordered 
to  pay  costs  has  not  done  so,  is  not  enough  to  justify  the  Court  in 
staying  the  action  {Morton  v.  Palmer,  1882,  9  Q.  B.  D.  89 ;  Ln  re  Wickham, 
1887,  35  Ch.  D.  272).  But  if  the  Court  sees  that  the  plaintiff  is  guilty 
of  vexatious  conduct,  and  that  it  is  oppressive  for  him  to  proceed  in 
such  circumstances,  the  Court  will  stay  the  action  till  he  complies  with 
the  order  for  payment  of  costs  {Graham  v.  Sutton,  Garden  &  Co.,  [1897] 
2  Ch.  367).  Then  if  they  be  not  paid  within  a  reasonable  time,  the 
Court  may  make  a  peremptory  order  that  they  be  paid  by  a  day  specified ; 


STAY  OF  PEOCEEDINGS  625 

and  if  they  be  not  paid  by  that  day,  the  Court  may  dismiss  the  action 
altogether  (Seton,  6th  ed.,  ch.  xi.  s.  2,  p.  130).  Where  an  action  is 
brought  against  several  joint  contractors,  all  of  whom  are  within  the 
jurisdiction,  and  one  of  them  has  not  been  served,  the  action  will  be 
stayed  unless  the  plaintiff  can  show  that  he  has  done  everything  in  his 
power  to  effect  service  {Bohinson  v.  Geisel,  [1894]  2  Q.  B.  685). 

11.  On  Bankruptcy. — If  a  sole  plaintiff  becomes  bankrupt,  and  his 
trustee  declines  to  continue  the  action,  all  proceedings  will  be  stayed 
(Bird  V.  Mathews,  1882,  46  L.  T.  512;  Bean  v.  Flower,  1895,  73  L.  T. 
371).  The  trustee  must  decide  promptly  whether  he  will  continue  the 
action  or  not ;  otherwise  the  defendant  can  take  out  a  summons  calling 
on  him  to  elect  within  so  many  days  (  Warder  v.  Saunders,  1882,  10 
Q.  B.  D.  114).  If  one  of  two  or  more  plaintiffs  becomes  bankrupt,  hia 
trustee  may,  with  his  consent,  be  added  as  a  co-plaintiff  {Hoare  &  Co. 
V.  Baker,  1887,  4  T.  L.  E.  26).  If  a  sole  defendant  becomes  bankrupt, 
all  proceedings  may  be  stayed  by  the  Court  having  jurisdiction  in 
bankruptcy,  under  sees.  10  and  11  of  the  Bankruptcy  Act,  1883, 
provided  the  action  is  in  respect  of  a  mere  money  demand,  and  the 
question  in  dispute,  being  one  of  proof  can  be  determined  by  the  Court 
of  Bankruptcy  (Barter  &  Co.  v.  Dubeux  &  Co.,  1881,  7  Q.  B.  D.  413  ;  Brook 
V.  Emerson,  1907,  95  L.  T.  821).  It  is,  however,  otherwise  where  the 
action  is  wider  in  its  scope,  e.g.  for  advances  obtained  by  the  fraud  of 
the  liquidating  debtor. 

12.  In  the  Winding-up  of  a  Limited  Company. — As  soon  as  a  petition 
to  wind  up  a  company  has  been  presented,  the  Court  has  power  to- 
restrain  further  proceedings  in  any  action,  suit,  or  proceeding  against 
the  company,  upon  such  terms  as  it  thinks  fit  (Companies  Act,  1862,, 
8.  85).  Under  this  section  the  Court  has  jurisdiction  to  restrain  till 
the  hearing  of  the  petition  or  until  further  order,  quMsi-crimmoX  pro- 
ceedings brought  against  a  company  by  a  common  informer  to  recover 
penalties  (In  re  British  Medical  Assurance  Association,  1886,  32  Ch.  D. 
503).  But  it  has  no  power  to  restrain  similar  proceedings  taken  against 
the  directors  personally  (ibid.).  The  Court  of  Appeal  has  also  a  general 
jurisdiction  to  order  a  stay  in  such  circumstances  (In  re  Liverpool 
Household  Stores,  1888,  4  T.  L.  R.  722).  And  see  Company,  Vol.  III. 
pp.  332,  348. 

13.  Pending  an  Appeal. — An  appeal  does  not  in  itself  operate  as  a 
stay  of  execution  or  other  proceedings ;  but  either  the  Court,  or  th& 
judge  who  heard  the  case,  or  a  Master  at  chambers  (Oppert  v.  Beaumont, 
1887,  18  Q.  B.  D.  435),  or  the  Court  of  Appeal  can  direct  that  pro- 
ceedings should  be  stayed.  It  is  usual  to  apply,  in  the  first  instance, 
to  the  judge  who  tries  the  case,  immediately  after  judgment.  If  he 
thinks  the  point  is  one  of  some  difficulty,  and  worthy  of  reconsideration 
in  the  Court  of  Appeal,  he  will  probably  grant  a  stay  of  execution 
unconditionally.  If,  however,  he  has  little  or  no  doubt  in  his  mind  as 
to  the  correctness  of  his  judgment,  he  will  probably  order  a  stay  of 
execution  for,  say,  a  fortnight,  on  condition  that  the  appellant  brings 
so  much  money  into  Court  within  a  week ;  if  notice  of  appeal  be  given 
within  that  fortnight,  the  stay  to  continue  till  after  the  hearing  of  the 
appeal ;  the  taxation  of  costs  to  continue  in  the  meantime,  and  the 
amount  of  the  allocatur  to  be  paid  to  the  solicitor  of  the  successful 
party  on  his  giving  his  personal  undertaking  to  refund  it,  should  th& 
judgment  be  reversed  on  appeal.  If  the  judge  who  heard  the  case 
thinks  that  any  appeal  would  be  frivolous  and  vexatious,  he  will  decline 

VOL.  XIII.  40 

/ 


626  -      STEAM-ENGINE 

to  make  any  order  at  all,  leaving  the  defeated  party  to  apply  for  a 
stay  to  the  Court  of  Appeal — an  application  which  is  not  often  success- 
ful (but  see  Bradford  v.  Young,  1884,  51  L.  T.  550).  The  Court  of 
Appeal  has  power  also  to  order  the  successful  party  not  to  part  with 
the  property  in  dispute  until  the  hearing  of  the  appeal  (  Wilson  v.  Church, 
1879,  11  Ch.  D.  576;  The  Batata,  [1897]  P.  118). 

Effect  of  a  Stay. — A  stay  does  not  operate  as  a  judgment  on  the 
merits.  It  is  not,  apparently,  ground  for  a  plea  of  res  judicata  {Bean  v. 
Flower,  1895,73  L.  T.  371),  yet  it  is  practically  a  bar  to  any  further  pro- 
ceeding ;  a  second  action  would,  no  doubt,  be  stayed  on  the  same  ground 
as  the  first.  Moreover,  where  the  stay  is  of  a  removable  character,  and 
the  plaintiff  takes  no  steps  to  remove  it,  the  defendant  may,  after  a 
reasonable  interval,  apply  to  have  the  action  dismissed  for  want  of 
prosecution;  the  stay  does  not  prevent  such  an  application  by  the 
defendant;  and  the  dismissal  of  the  action  under  such  circumstances 
will  be  a  bar  to  any  future  proceeding  (Bepublic  of  Liberia  v.  Boye,  1876, 
1  App.  Cas.  139).  And  see  Execution  ;  Stay  of  Execution,  Vol.  V. 
p.  546. 

S'tea.m-Eng'ine. — On  the  introduction  of  steam-engines  they 
were  treated  as  creating  a  nuisance  at  common  law  by  their  noise  and 
smoke  ( Vaughan  v.  Taff  Vale  Bly.  Co.,  1863,  5  H.  &  N.  679).  1  &  2 
Geo.  IV.  c.  xli.  provides  for  proceedings  for  effectually  abating  such 
nuisance  in  the  case  of  certain  kinds  of  steam-engines. 

Their  use  on  railways  is  usually  legalised  by  statute  (7  &  8  Vict, 
c.  85 ;  8  &  9  Vict.  c.  20,  s.  114;  30  &  31  Vict.  c.  127,  s.  33),  which  has 
the  effect  of  taking  away  any  remedy  for  nuisance,  and  leaving  persons 
aggrieved  to  proceed  for  damages  only  for  negligent  user  {B.  v.  Bease, 
1832,  4  Barn.  &  Adol.  30;  Simkin  v.  L.  &  N.-W.  Bly.  Co,,  1888,  21 
Q.  B.  D.  453 ;  Port-Glasgouj,  etc..  Sailcloth  Co.  v.  Caledonian  Bly.  Co., 
19  Ct.  Sess.  Cas.  4th  S.  (Rettie)  608 ;  [1893]  W.  N.  29).  The  Railway 
Fires  Act,  1905,  5  Edw.  vii.  c.  11,  gives  compensation  for  the  destruc- 
tion of  crops  by  sparks  or  cinders  emitted  from  any  locomotive  engine 
used  on  a  railway,  independent  of  the  fact  that  the  engine  was  used 
on  a  railway  working  under  statutory  powers.  For  details  relating  to 
this  Act,  see  Crops,  Vol.  IV.  p.  240.     See  also  Negligence. 

In  permitting  their  use  on  highways,  the  legislature,  besides  impos- 
ing restrictions,  has  specially  reserved  the  right  to  proceed  for  nuisance. 
See  Motor  Cars  ;  Traction  Engine. 

Steam  threshing  engines  may  now  be  used  within  25  yards  of  a 
highway,  subject  to  certain  precautions  (57  &  58  Vict.  c.  37). 

Step-daughter. — A  bequest  by  a  testator  to  his  "step- 
daughter" was  held  valid,  notwithstanding  that  the  legatee's  mother, 
at  the  time  she  went  through  the  ceremony  of  marriage  with  the 
testator,  had  a  husband  living  {Wilkinson  v.  Joughin,  1866,  L.  R.  2  Eq. 
319). 

Stet  Processus. — This  was  an  entry  on  the  roll  in  the 
nature  of  a  judgment  that,  by  consent  of  the  parties,  all  further  proceed- 
ings should  be  stayed  (Lush.  Practice,  3rd  ed.,  893).  See  Abandonment 
OF  Action  ;  Stay  of  Proceedings. 

Stevedore  is  a  person  employed  to  stow  cargo  on  boaTd  a  ship. 


STOCK  627 

The  master  of  a  ship  is  bound  by  the  general  maritime  law  to  see  that 
the  cargo  is  properly  stowed  {Blaihie  v.  Siembridge,  1859,  6  C.  B.  N.  S. 
894) ;  but  if  the  ship  has  been  let  to  a  charterer,  and  the  charterer 
appoints  a  stevedore,  who  is  paid  by  the  shipowner  and  acts  under  the 
master's  order,  the  master  is  not  liable  for  such  stowage  if  the  goods 
never  come  into  his  possession  but  are  damaged  while  being  got  on  board 
(ibid.) ;  nor  is  he  if  the  vessel  is  stowed  by  charter's  stevedore  at  risk 
and  expense  of  vessel,  and  cargo  is  stowed  by  stevedore  appointed  by 
charterer  and  paid  by  shipowners,  the  ship's  officers  not  interfering  {TJie 
Catherine  Chalmers,  1874,  32  L.  T.  847).  If,  however,  the  goods  are 
shipped,  and  the  charterers  are  not  liable  under  the  charter-party  for 
improper  stowage,  the  shipowners  are  liable  for  the  acts  of  the  stevedore 
although  he  is  employed  by  the  charterers  {Sack  v.  Ford,  1862,  34  L.  J. 
C.  P.  12);  and  so  they  are  under  a  charter-party  allowing  charterers  to 
appoint  a  head  stevedore  at  expense  and  under  inspection  and  liability 
of  master  for  proper  stowage,  unless  the  charterers  supervise  and  make 
no  objection  to  the  stowage  {The  Helene,  1866,  L.  K.  1  C.  P.  231). 

Steward. — This  word  (the  Latin  equivalent  of  which  is  sene- 
schallus)  is  said  to  be  derived  from  stede,  place  or  ward ;  and  therefore 
means  a  ward  or  keeper,  one  appointed  in  the  stead  of  another.  It 
"  is  a  word  of  many  significations,"  but  in  Litt.  s.  78,  "  it  signifieth  an 
officer  of  justice,  namely,  a  keeper  of  Courts,  etc."  (Co.  Litt.  61a,  b). 
See  Lord  High  Steward. 

The  steward  of  a  manor  has  a  general  charge  of  all  legal  matters  con- 
nected with  the  manor  of  which  he  is  steward ;  for  example,  he  admits 
tenants,  accepts  surrenders,  etc.  He  stands  in  much  the  same  relation 
to  his  manorial  lord,  as,  say,  an  under-sheriff  does  to  the  sheriff.  There 
are  also  barmote  stewards  (see  Barmote). 

Stews. — See  Brothel. 

Stifling*  Prosecution. — See  Hush  Money;  Theftbote. 

Stills  and  Retorts. — Appliances  used  for  the  distillation  of 
exciseable  spirits.  Their  size  is  regulated  by  the  Spirits  Act,  1880, 
43  &  44  Vict.  c.  24,  ss.  7,  8.  It  is  illegal  to  possess  or  use  them  without 
an  excise  licence  (6  Geo.  iv.  c.  81,  s.  10 ;  43  &  44  Vict.  c.  24,  s.  5). 
The  excise  regulations  with  respect  to  them  are  considered  under 
Excise. 

Stint,  Common  without. — That  is,  common  sarw  wom&rg. 
See  Common,  Vol.  III.  p.  224. 

Stipend. — See  Pluralities. 

Stipendiary  Magistrate.— See  Magistrate;  Metro- 
politan Police  District;   Police  Courts. 

St.   Lucia. — See  Windward  Islands. 

Stock. — The  expression  "stock,"  when  used  with  reference  to  a 
joint-stock  company,  primd  facie  includes  fully  paid  shares,  and  the 
expression   "  shares  "  primd  facie  includes  stock.      Shares  cannot  be 


628 


STOCKBROKER 


converted  into  stock  until  they  are  fully  paid ;  but  there  is  no  substan- 
tial difference  between  fully  paid  shares  and  stock,  except  that  stock 
can  be  subdivided,  and  transferred  in  fractions  of  any  amount,  whereas 
shares  are  incapable  of  such  subdivision.  In  Morrice  v.  Aylmer,  1875, 
L.  R.  7  H.  L.  717,  a  testator  made  a  bequest  of  "all  such  stocks  in  the 
public  funds  or  shares  in  any  railway  of  which  I  die  possessed,"  and 
died  possessed  of  stock  in  the  funds,  stock  in  a  railway  company,  and 
shares  in  the  same  railway  company  not  fully  paid  up ;  and  it  was  held 
that  the  words  "  shares  in  any  railway "  included  the  railway  stock 
(overruUng  Oakes  v.  Oakes,  1852,  9  Hare,  666 ;  68  E.  R.  680).  So  in 
Ex  parte  Copeland,  1852,  2  De  G.,  M.  &  G.  914;  42  E.  R.  1129,  it  was 
held  that  fully  paid  up  shares  in  a  railway  company  were  stock  within 
the  meaning  of  sec.  201  of  the  Bankruptcy  Law  Consolidation  Act,  1849, 
which  provided  that  no  bankrupt  should  be  entitled  to  his  certificate 
if  he  should  within  a  year  preceding  the  petition  have  lost  £200  "  by 
any  contract  for  the  purchase  or  sale  of  any  Government  or  other 
stock,  where  such  contract  was  not  to  be  performed  within  a  week  after 
the  contract."  So  the  expression  "stock"  in  the  Trustee  Act,  1893, 
includes  fully  paid  shares  (see  s.  50).  As  to  bequest  of  bank  stock, 
see  Bignall  v.  Rose,  1855,  24  L.  J.  Ch.  27. 


Stockbroker. 

Exchange. 


-See  Bought  and  Sold  Notes;  Broker;  Stock 


Specific  Performance 

634 

Buying  In       ...         . 

634 

Of  Seller 

635 

Sijecific  Performance 

635 

Selling  Out      .... 

635 

Unpaid     Shares,    Indemnity, 

(rrissell  v.  Bristowe,  etc. 

636 

Dividends,  New  Shares,  etc.  . 

636 

Defaulters 

637 

Broker  and  Client .... 

640 

Stock  Exchange. 

TABLE  OF  CONTENTS. 

Method  of  Dealing         .        .        .628 
The  Account  and  Special  Settle- 
ment   629 

Carrying  Over  (Contango,  etc.)  .  630 
Passing  Tickets  .  .  .  .630 
Completion  of  Bargains  .        .631 

(A)  Delivery       .        .        .        .632 

Certificates        .         .         .  632 

Transfers,  Contents  of      .  633 

(B)  Payment       ....  634 
Remedies 634 

Of  Buyer 634 

The  Stock  Exchange  is  in  some  senses  a  law  unto  itself.  Not  that 
the  rights  of  parties  to  a  Stock  Exchange  bargain  can  be  understood 
without  a  knowledge  of  ordinary  legal  principles;  at  the  same  time, 
much  of  the  law  which  governs  Stock  Exchange  transactions,  whether 
such  law  be  constituted  by  the  rules  of  the  market  or  by  judicial  deci- 
sions, has  no  application  to  contracts  outside  the  area  of  Capel  Court. 
The  practitioner  must  therefore  be  prepared  to  unlearn  some  of  the  law 
which  he  has  to  apply  in  ordinary  contracts  when  he  comes  to  deal  with 
a  case  in  which  stock  and  share  transactions  are  involved. 

It  is  not  necessary  here  to  enter  into  a  discussion  of  the  composition 
of  the  Stock  Exchange.  What  is  intended  in  these  pages  is  to  offer 
a  short  conspectus  of  the  law  regulating  dealings  in  that  market,  and 
the  rights  and  liabilities  of  parties  to  such  contracts ;  for  fuller  infor- 
mation, see  Stutfield  on  the  Stock  Exchange. 

With  respect  to  the  members  of  the  Stock  Exchange,  the  cardinal 
feature  would  seem  to  be  the  division  of  the  House  into  dealers  or 


STOCK  EXCHANGE  629 

jobbers,  and  brokers.  We  shall  see  hereafter  that  the  Stock  Exchange 
recognises  no  distinction  in  the  rights  of  members  of  either  class  as 
parties  to  bargains :  both  are  personally  responsible,  even  though  the 
broker  is  usually  acting  as  an  agent  for  a  non-member.  But  so  funda- 
mental is  this  classification  of  members,  that  rule  75  prohibits  members 
from  acting  in  a  dual  capacity  of  jobber  and  broker,  and  rule  52  pro- 
hibits partnerships  between  brokers  and  dealers.  The  business  of  the 
jobber  is  somewhat  peculiar — probably  no  other  market  has  an  exact 
counterpart.  He  deals  or  trades  in  stocks ;  but  it  is  no  part  of  his 
business  to  keep  the  stocks  in  his  possession  to  deliver  to  a  purchaser. 
If  he  buys,  he  does  not  as  a  rule  take  up  the  stock  into  his  own  name, 
but  sells  them  out  to  somebody  else  who  will  do  so.  There  are,  of 
course,  exceptions  to  this,  but  in  theory  the  essence  of  a  jobber's  busi- 
ness is  to  keep  his  book  level,  so  that  at  the  account  he  has  nothing 
either  to  take  up  into  his  name  or  to  deliver. 

The  business  of  the  broker,  on  the  other  hand,  is  to  buy  or  sell 
stocks  for  his  clients,  or  members  of  the  public.  If  he  wants  to  buy  or 
.sell  he  asks  a  jobber  to  make  him  a  price,  without  saying  at  first  which 
he  is,  buyer  or  seller.  The  jobber  will  then  quote  two  figures,  at  the 
lower  of  which  he  will  buy,  and  at  the  higher  of  which  he  will  sell. 
The  broker  then,  if  satisfied  with  the  price  quoted,  declares  what  his 
bargain  is.  The  jobber  having  given  a  price,  is  bound  to  complete  up 
to  certain  specified  limits  of  amounts  (see  as  to  this,  rule  82) :  his  profit 
being  the  difference  between  the  two  prices  quoted,  commonly  known 
as  the  jobber's  "  turn,"  which  he  endeavours  to  realise  on  resale  or 
repurchase. 

It  must  be  observed  that  no  writing  ever  passes  between  members  of 
the  House.  Each  party  notes  the  bargain  in  his  book,  but  they  meet  at 
the  checking-book  next  day  and  compare  their  notes.  In  tracing  out  the 
subsequent  stages  of  a  Stock  Exchange  deal,  and  in  discussing  the  mutual 
rights  of  the  parties,  we  shall  in  these  pages  assume  the  transaction  to 
be  one  in  registered  securities,  which  present  perhaps  the  chief  difficulties 
arising  in  such  dealings.  So  that  the  rules  on  which  the  following 
remarks  are  founded  are  rules  80-95,  "  Bargains  and  the  Settlement  of 
Accounts,"  and  rules  102-113,  relating  to  "Securities  Deliverable  by 
Deed  of  Transfer."  Those  which  follow,  dealing  with  bargains  in 
securities  to  bearer,  for  the  present  purpose  scarcely  require  to  be 
considered. 

By  rule  81  a  bargain  when  struck  is  considered  as  made  for  the 
current  account — that  is  for  the  following  account  day — unless  any  other 
time  is  specified.  The  accounts  are  fixed  by  the  committee,  usually  at 
intervals  of  about  twelve  days.  Bargains,  however,  in  the  shares  of  new 
companies  are  conditional  on  the  appointment  of  a  special  settling  day 
(see  rule  81)  which  is  fixed  by  the  committee  on  application,  provided  the 
necessary  conditions  are  complied  with  (see  rules  137  et  seq.).  If  a  special 
settlement  is  refused,  the  bargain  is  cancelled.  To  avoid  evasion  of  this 
rule,  the  committee  at  one  time  refused  to  recognise  dealings  in  letters 
of  allotment  of  shares  in  new  companies,  but  the  present  rules  contain 
no  such  provision. 

We  have  now  to  consider  of  what  the  account  consists.  We  may 
take  it  to  consist  of  four  days — The  first,  the  Mining  Contango  {i.e. 
Carrying-Over)  day ;  the  second,  the  General  Contango  day ;  tlie  third, 
called  Ticket  day;  the  fourth,  the  Account  or  Settling  day.  The 
separate  carrying-over  day  for  dealing  in  mining  shares  we  need  not 
further  consider  here. 


630  .  STOCK  EXCHANGE 

I.  Caerying-Over  Day. — A  person  carries  over  who  does  not  want  to 
complete  his  bargain  on  the  next  settling  day,  but  to  postpone  com- 
pletion till  the  following  account.  The  operation  is  as  follows : — Assume 
a  client  has  bought  stock  through  his  broker  for  next  settling  day,  but 
instructs  his  broker  to  carry  over.  The  price  at  which  he  bought  is  100. 
The  operation  is  effected  by  his  broker  going  to  a  jobber — possibly,  but 
not  necessarily,  the  same  jobber  as  the  one  from  whom  he  bought.  He 
sells  the  stocks  to  him  for  the  existing  account,  and  buys  back  a  similar 
amount  at  the  same  price  for  the  ensuing  account;  in  other  words,  he 
closes  the  original  transaction  for  that  account,  and  simultaneously  opens 
it  again  for  the  next  account.  The  price  at  which  this  carrying  over  is 
etfieeted  is  called  the  "  making-up  price,"  which  is,  shortly,  the  middle 
price  of  the  day.  Supposing  the  stocks  are  1  lower,  he  sells  to  the 
jobber  for  the  then  account  at  99,  and  buys  back  from  him  a  similar 
amount  at  the  same  price,  99,  for  the  ensuing  account ;  but  he  has  on 
the  settling  day  of  the  existing  account  to  pay  the  difference,  namely, 
1  per  cent.  Had  the  making-up  price  been  101,  he  would  have  received 
1  per  cent,  from  the  jobber,  instead  of  paying  it.  In  rule  88  "  continua- 
tions are  bargains,  not  loans,  and  must  be  effected  at  the  making-up 
price  :  "  it  is  not  a  question  of  negotiation.  In  addition  to  the  price  for 
which  he  buys  for  the  ensuing  account,  he  may  have  to  pay  a  premium 
which  is  called  a  "  contango,"  which  practically  represents  interest  on 
money  advanced ;  for  this  carrying  over  is  in  effect  a  loan  on  the  security 
of  the  stock,  with  this  difference,  as  pointed  out  by  rule  87,  that  the 
person  who  carries,  or,  as  it  is  called,  "  takes  in  "  the  stocks,  is  at  liberty 
to  deal  with  them  in  any  way  he  pleases  in  the  interim,  and  any  profit 
he  may  make  by  such  dealing  belongs  to  him.  A  mortgagee  is  not  in 
that  position,  as  he  would  have  to  account  to  his  mortgagor  for  any  profit 
he  might  make  (see  as  to  this,  Bongiovanni's  Case,  54  L.  T.  N".  S.  320  ;  also 
Bentinck  v.  London  Joint-Stock  Bank,  [1893]  2  Ch.  120). 

Supposing  now  the  client,  instead  of  being  a  "  bull,"  was  a  "  bear  " 
who  had  sold  speculatively,  and  on  carrying-over  day  he  wished  to  post- 
pone delivery.  Here  his  broker  would  reverse  the  operation.  He  would 
buy  from  the  jobber  at  the  making-up  price  for  the  existing  account, 
and  sell  to  him  at  the  same  price  for  the  ensuing  account,  the  client 
paying  or  receiving  the  difference  according  as  the  stocks  had  risen  or 
fallen.  In  this  case  he  is  borrowing  not  money,  but  stock,  for  the 
account ;  and  for  this  he  may  pay  a  premium,  called  a  "  backwardation," 
if  the  market  is  oversold,  and  there  is  a  great  demand  for  the  stock. 
He  may,  on  the  other  hand,  receive  a  contango,  according  to  the  state 
of  the  market,  seeing  that  where  the  seller  postpones  delivery,  the 
buyer  gets  time  for  payment. 

But  assuming  a  client  wishes  to  complete  his  bargain  on  the  first 
settling  day,  then  the  two  next  days  of  the  account  become  important, 
namely,  ticket  day  and  settling  day. 

II.  Ticket  Day. — Everyone  who  has  bought  for  an  account  day  is 
obliged  on  ticket  day  to  give  either  his  own  name  or  the  name  of  some- 
body else  into  which  the  stocks  are  to  be  transferred.  We  pointed  out 
that  if  a  jobber  sells,  he  probably  does  not  deliver  stock  standing  in  his 
own  name,  but  buys  them  back  from  somebody  else.  The  jobber  then, 
having  received  a  ticket  from  the  broker  with  the  client's  name  upon  it, 
would  hand  it  on  to  the  member  from  whom  he,  the  jobber,  bought,  and 
the  ticket  would  so  pass  on  until  it  got  into  the  hands  of  somebody  who 
had  sold  stock  which  he  possessed  and  was  prepared  to  deliver.     Con- 


STOCK  EXCHANGE  631 

versely,  if  a  jobber  buys,  he  probably  does  not  take  the  stocks  into  his 
own  name ;  so  he  has  to  pass  on  to  his  seller  a  ticket  with  a  substituted 
name.  This  ticket  really  contains  the  necessary  materials  to  enable  the 
deliverer  to  prepare  a  transfer,  as  he  without  it  could  not  know  into 
whose  name  the  stock  which  he  was  delivering  had  to  be  transferred.  The 
rule  by  which  this  duty  to  pass  tickets  is  described  is  rule  104.  Some- 
times a  ticket  is  split.  Supposing  the  jobber  sold  to  a  broker  £200  of 
stock.  He  may  not  have  bought  it  all  back  from  one  member.  Suppose 
he  has  bought  £100  of  stock  from  each  of  two  members :  the  broker 
would  pass  a  ticket  to  the  jobber  for  £200  ;  the  jobber  would  keep  this 
ticket,  but  would  issue  what  are  called  "  splits " — that  is  to  say,  he 
would  issue  two  tickets  for  £100  of  stock  each,  to  each  of  the  two 
members  from  whom  he  had  bought.  The  result  would  be  that  the 
broker's  client  would  have  delivery  made  to  him  of  two  transfers,  and  as 
this  would  cause  a  slight  increase  of  expense  in  some  cases,  for  extra 
stamps  and  generally  a  small  sum  for  the  registration  of  a  second 
transfer,  rule  94  provides  that  this  extra  expense  is  to  be  borne  by  the 
member  who  splits  the  ticket. 

The  following  are  the  necessary  contents  of  the  ticket  (see  rule  104), 
and  it  must  be  remembered  that  any  ticket  not  containing  all  these 
essentials  is  imperfect,  and  might  expose  the  person  issuing  it  to  the 
penalties  of  selling  out,  as  we  shall  see  hereafter: — (1)  The  name  of  the 
member  issuing  it,  whether  jobber  or  broker,  the  latter  being  equally 
liable  as  principal.  (2)  The  denomination  of  the  security,  so  that  the 
person  who  delivers  may  see  that  the  security  specified  corresponds  with 
that  which  he  has  sold.  (3)  The  amount  of  the  security.  This,  as  we 
have  seen,  may  differ  in  the  hands  of  the  deliverer  from  that  in  the 
ticket  originally  issued  which  may  have  been  split.  (4)  The  name  of 
the  transferee.  This  may  be  a  member  of  the  house,  but  not  necessarily 
80.  Probably  in  the  majority  of  cases  the  name  of  a  member  of  the 
public  is  inserted,  on  whose  behalf  the  broker  has  agreed  to  buy  in  the 
house.  In  such  a  case  the  broker  is  the  issuer  of  the  ticket.  (5)  The 
consideration.  This  regulates  the  stamp  duty,  as  we  shall  see  when  we 
come  to  discuss  the  contents  of  the  transfer.  (6)  The  date.  (7)  The 
name  of  the  member  to  whom  he  issues  the  ticket,  who  is  the  person  who 
made  the  immediate  sale  to  him,  and  every  person  through  whose  hands 
the  ticket  passes  has  his  name  indorsed  upon  it. 

The  exact  uses  of  this  system  of  passing  tickets  will  appear  in  a 
more  practical  light  when  we  come  to  discuss  the  subject  of  completion 
of  bargains.  It  may  here  be  stated  that  the  uses  of  the  system  are 
twofold.  First,  it  is  necessary  on  account  of  the  peculiar  nature  of  the 
jobber's  business.  If  he  sells,  he  is  probably  not  the  deliverer — that 
is,  he  buys  back  from  somebody,  the  ticket  eventually  passing  into  the 
hands  of  the  actual  deliverer.  If  he  buys,  he  does  not  take  up  the 
stock  into  his  own  name.  He  sells  out  to  somebody,  and  eventually  it 
is  sold  to  a  person  who  is  going  to  take  up  and  issues  the  ticket.  In  the 
result,  the  ticket  system  enables  the  ultimate  seller  and  the  ultimate 
buyer  to  be  brought  together  for  the  purposes  of  settling,  all  intermediate 
jobbers  dropping  out. 

III.  Settling  Day;  Completion. — We  have  now  to  consider  the 
methods  in  which  a  Stock  Exchange  bargain  is  completed  between  the 
parties,  by  delivery  on  one  side  and  payment  on  the  other.  The  fourth 
day  of  the  account,  or  settling  day,  is  the  proper  day  for  this ;  but  in 
registered  securities  a  person  has  ten  days  extra  in  which  to  deliver 


632  STOCK  EXCHANGE 

stocks,  during  which  time  the  issuer  of  the  ticket  is  not  entitled  to  buy 
in,  as  we  shall  see  hereafter.  The  reason  for  these  days  of  grace  is,  that 
sometimes  two  or  three  signatures  may  be  required,  which  may  take 
time  to  get.  Of  course  it  is  now  assumed  that  the  transaction  is  to  be 
closed,  and  that  the  account  is  not  to  be  kept  open  by  being  carried  over 
as  hereinbefore  described.  As  above  explained,  the  ticket  is  passed  until 
it  gets  into  the  hands  of  a  member  who,  or  whose  client,  has  sold  stocks 
which  he  intends  to  deliver.  This  member  keeps  the  ticket,  and  con- 
sequently he  is  alternatively  described  in  the  rules  as  "  deliverer,"  "  holder 
of  the  ticket,"  or  "  ultimate  seller."  Probably  in  the  majority  of  cases 
the  holder  of  the  ticket  is  a  broker  acting  for  a  client. 

By  rule  108  the  duty  is  imposed  on  the  deliverer  of  preparing  the 
transfer.  This  is  not  the  case  in  a  sale  of  land  when  the  conveyance  is 
prepared  by  the  purchaser.  Slight  reflection  will  show  that  this  would 
be  impracticable  in  sales  of  securities  on  the  Stock  Exchange.  The 
person  issuing  the  ticket  could  not  make  out  the  transfer,  as  he  does  not 
know  who  the  deliverer  is — as  his  immediate  seller  has  probably  passed 
on  the  ticket ;  nor  does  he  know  in  how  many  blocks  the  stock  will  be 
delivered.  The  ticket  may  be  split  several  times.  The  ticket  contain- 
ing the  particulars  already  described  does  give  the  deliverer  all  the 
information  he  can  require  to  enable  him  to  prepare  the  transfer. 

The  ticket  system  serves  to  bring  the  ultimate  seller  and  ultimate 
buyer  together.  It  is  the  duty  of  the  deliverer  to  make  a  good  delivery. 
Under  rule  102  he  is  responsible  for  the  genuineness  and  regularity  of 
all  documents  delivered.  Of  course,  from  a  strictly  legal  point  of  view, 
he  is  responsible  only  to  his  immediate  purchaser,  but  as  the  latter  is 
very  likely  not  the  person  with  whom  he  eventually  completes,  who  is 
the  issuer  of  the  ticket,  no  doubt  the  committee  would  recognise  the 
deliverer  as  directly  responsible  to  the  issuer.  For  a  case  in  which  a 
forged  transfer  was  unwittingly  delivered  by  a  broker  and  he  was  held 
responsible  to  the  ultimate  purchaser,  reference  can  be  made  to  the 
Barton  Case,  1890,  24  Q.  B.  D.  77. 

(A)  Delivery. — We  now  have  to  consider  what  is  necessary  to  con- 
stitute a  good  delivery.  Under  the  terms  of  the  rule  111  it  is  clear 
that  a  mere  transfer  is  not  sufficient.  As  in  the  case  of  a  sale  of  land, 
documents  of  title  are  requisite.  "We  have  then  to  consider  (1)  the 
documents  of  title;   (2)  the  transfer. 

(1)  The  ordinary  documents  of  title  are,  of  course,  the  certificates 
which  are  under  the  Companies  Acts  primd  facie  evidence  of  the  title 
of  the  person  named  therein.  A  company  will  always  refuse  to  register 
a  transfer  without  a  certificate,  and  a  transfer  without  registration  con- 
fers only  an  equitable  title,  registration  being  necessary  to  the  complete 
legal  title  (see  France  v.  Clarke,  1884,  26  Ch.  D.  257).  But  in  some 
cases  it  is  impossible  for  the  deliverer  to  produce  certificates.  They  may 
be  out  of  the  seller's  possession,  as  suggested  in  rule  125.  In  another 
case  the  person  selling  may  never  have  had  a  certificate,  that  is,  he  may 
have  bought  but  a  short  time  previously,  selling  out  before  sufiicient 
time  had  elapsed  to  enable  the  company  to  issue  the  certificates  to  him. 
Another  case  may  occur.  He  may  have  a  certificate  for  1000  shares, 
and  only  be  selling  500 ;  so  he  could  not  be  called  on  to  hand  over  the 
whole  certificate.  In  each  of  these  cases  the  practice  is  to  get  what  is 
called  a  certified  transfer,  that  is,  the  transfer  must  contain  a  certificate 
signed  by  the  secretary  of  the  company  to  the  effect  that  the  deliverer 
can  make  a  good  title.     If  the  certification  be  required  on  the  ground 


STOCK  EXCHANGE  633 

of  his  having  a  certificate  for  more  shares  than  he  is  selling,  he  deposits 
the  certificate  at  the  company's  office,  receiving  a  fresh  certificate  for 
the  Imlance  which  he  retains.  In  the  case  of  certificates  of  companies 
whose  share  capital  has  been  converted  into  stocks,  the  certification  is 
given  by  its  secretary  of  the  share  and  loan  department,  but  not  in  the 
case  of  shares.  For  the  legal  effect  of  this  certification  and  the  legal 
liability  of  the  company  in  respect  of  it,  it  must  suffice  here  to  give  a 
reference  to  Tomkinson  v.  Balkis  Co.,  [1891]  2  Q.  B.  614. 

In  the  case  of  shares  in  new  companies  which  are  not  fully  paid  up, 
sometimes  provisional  certificates  are  issued.  In  such  a  case  delivery  is 
not  good  without  a  receipt  for  payment  of  the  calls  due,  either  indorsed 
or  separate. 

(2)  The  Transfer. — This,  as  we  have  said,  must  be  made  out  according 
to  the  instructions  on  the  ticket,  and  by  the  deliverer. 

(a)  Transfers  in  blank  are  discouraged  by  the  committee  (see  r.  103). 
Such  can  never  be  a  perfect  deed.  So  if  a  deed  is  required,  such  a 
transfer  is  ineffectual;  if  writing  is  sufficient,  it  may  be  good  as  an 
instrument  in  writing. 

(Z>)  The  Transferor. — This,  of  course,  must  be  the  same  as  the  name 
on  the  certificate.  If  the  certificate  is  in  joint  names,  both  holders  must 
sign,  even  though  the  joint  holders  may  be  executors  under  the  will ; 
at  least  this  is  so  in  companies  governed  by  the  Companies  Clauses  Act. 
Whether  this  is  so  under  the  Companies  Act  of  1862  has  not  yet  been 
settled  (see  Barton  v.  L.  &  N.-  W.  Mly.  Co.,  1890,  24  Q.  B.  D.  77). 

(c)  The  Transferee. — This,  as  we  have  explained,  need  not  be  the 
same  as  tlie  member  who  issues  the  ticket.  He  is  in  a  large  number  of 
cases  not  a  member  of  the  Stock  Exchange  at  all. 

{d)  The  Consideration. — Rule  104  provides  that  the  consideration 
must  be  the  price  at  which  the  ultimate  purchaser,  or  issuer  of  the 
ticket  purchased ;  and  the  Stamp  Act  gives  effect  to  this  rule  by  pro- 
viding that  the  duty  is  to  be  assessed  by  that  amount,  not  the  price  at 
which  the  deliverer  himself  sold  to  his  inmiediato  purchaser.  In  some 
cases  the  result  of  this  is  that  the  deliverer  may  seem  to  be  acknow- 
ledging the  receipt  of  a  larger  sum  than  he  has  actually  received,  whicli 
might,  in  the  case  of  trustees,  entail  liability.  To  meet  this  difficulty, 
the  common  form  of  transfer  expresses  the  consideration  simply  as  paid 
by  the  purchaser,  and  not  to  the  deliverer. 

{e)  The  Security. — Of  course  the  security  which  the  deliverer  transfers 
must  correspond  with  that  specified  on  the  ticket.  Thus,  when  a  ticket 
is  issued  for  preference  shares,  ordinary  shares  could  never  be  a  good 
delivery ;  and  if  dealings  in  the  house  are  confined  to  partly  paid-up 
shares,  fully  paid-up  shares  are  not  good  delivery  in  the  absence  of  a 
special  bargain.  This  sometimes  occurs  where  the  subscribed  shares  are 
not  fully  paid  up,  in  which  case  the  vendor's  fully  paid-up  shares  are 
not  a  good  delivery  until  a  special  settling  day  has  been  fixed  for  them 
<see  rule  138). 

(/)  The  Stamp. — By  rule  110  the  member  issuing  the  ticket  is  liable 
for  the  stamp  and  registration  fee.  The  former,  as  we  have  already  ex- 
plained, is  regulated  by  the  price  on  the  ticket  which  the  issuing  member 
has  paid. 

{g)  The  fact  that  the  amount  of  shares  delivered  by  one  transfer  is 
less  than  the  total  amount  which  the  issuer  is  entitled  to  receive  does 
not  entitle  him  to  reject  and  refuse  to  pay  for  the  number  delivered. 
In  an  ordinary  contract  this  is  not  so ;  delivery  for  lesser  amount  than 


634  STOCK  EXCHANGE 

that  contracted  for  is  bad,  and  can  be  rejected.  Conversely,  there  is 
no  doubt  that  the  deliverer  is  bound  to  deliver  any  number  for  which  a 
ticket  may  be  passed  to  him,  though  that  number  may  be  less  than  he 
has  contracted  to  sell.  This,  again,  is  at  variance  with  the  ordinary  rule 
of  law  with  regard  to  the  obligations  of  the  seller.  Two  or  three  tickets 
may  be  passed  to  him  to  make  up  the  amount,  and  as  they  each  come  in, 
he  is  bound  to  make  delivery  accordingly,  under  penalty  of  the  buying-in 
rules,  as  we  shall  see  later. 

(B)  Payment. — We  have  now  to  consider  the  question  of  payment 
by  the  purchaser.  By  rule  66  it  is  laid  down  that  the  Stock  Exchange 
in  bargains  recognises  only  its  own  members ;  and  by  rule  78  it  is  said 
that  no  member  shall  enforce  by  law  a  claim  against  another  member, 
or  the  client  of  the  member,  without  various  consents.  By  rule  85  no 
member  shall  be  obliged  to  take  reference  for  payment  to  a  non-member, 
nor  shall  he  be  obliged  to  pay  a  non-member.  The  purport  of  these 
three  rules  may  be  summarised  as  follows : — Members  deal  with  one 
another  as  members  only,  and  a  member  can  only  look  for  performance 
to  another  member.  While,  therefore,  no  member  can  enforce  a  claim 
against  an  outsider,  it  is  also  equally  clear  that  he  cannot  shift  respon- 
sibility on  to  a  person  who  is  not  a  member,  and  thereby  evade  liability 
himself.  Rule  85  has  also  this  somewhat  important  consequence :  The 
deliverer  who  is  the  member  to  whom  payment  must  be  made,  is,  as  we 
have  said,  probably  in  the  majority  of  cases  a  broker  acting  for  a  client, 
which  latter  being  the  real  deliverer  is  the  person  in  strictness  entitled 
to  receive  the  money.  But  the  obvious  effect  of  rule  85  is  to  make  pay- 
ment by  one  member  to  another  a  good  discharge,  even  though  the  latter 
be  an  agent.  This,  again,  may  have  a  somewhat  important  consequence. 
By  rule  84  cheques  must  be  passed  through  the  clearing-house,  the 
result  of  which  is  that  payment  by  one  member  of  what  is  due  to  him 
becomes  a  set-off  against  what  he  may  have  to  receive,  so  that  in  fact 
balances  only  pass.  The  result  of  this  might  be  that  a  broker  acting 
for  a  client  might  not  actually  receive  payment  except  by  such  set-off 
in  respect  of  the  securities  his  client  is  selling.  Of  course  this  does  not 
affect  the  liability  of  the  broker  to  his  client,  though  it  may  affect  his 
power  of  paying.  See  as  to  this,  hi  re  Plumley,  1880,  13  Ch.  D.  667. 
The  liability  of  the  buyer  is  primarily  to  his  immediate  seller,  and  the 
seller  has  a  right  to  demand  payment  from  his  immediate  buyer,  and 
the  latter  is  the  one  primarily  responsible  for  payment.  He  cannot, 
by  passing  a  ticket  issued  to  him  by  another  member,  evade  his  own 
responsibility  (see  rule  86). 

From  the  above  description  of  a  Stock  Exchange  bargain  passing 
through  its  various  stages,  it  will  be  obvious  that  "  difference  bargains," 
whereby  the  parties  agree  to  pay  each  other  according  to  the  rise  or  fall 
in  price,  are  unknown  in  the  Stock  Exchange;  such  bargains  are  mere 
wager  contracts  (see  Thacker  v.  Hardy,  1879,  4  Q.  B.  D.  685). 

We  have  now  to  consider  the  remedies  of  the  different  parties  to  a 
bargain  in  the  case  of  non-performance. 

I.  The  Buyer. — (a)  His  Remedies  at  Law. — He  can  no  doubt  on 
failure  of  the  seller  to  deliver,  go  and  buy  in  against  the  seller,  and 
recover  any  excess  of  price  he  may  have  to  pay.  With  regard  to 
specific  performance,  this  remedy  is  only  available  to  him  in  non- 
marketable  securities,  in  which  case  the  remedy  of  buying  in  might 
be  impossible. 

(&)  Under  Rules  of  the  Stock  Exchange. — By  rule  127  if  stock  is  not 


STOCK  EXCHANGE  635 

delivered  within  ten  days,  the  issuer  of  the  ticket  may  buy  in  the  same 
against  the  seller  from  half -past  one  o'clock  on  the  eleventh  day  after 
the  date  of  the  ticket.  This  is  effected  by  the  officials  of  the  house  (see 
rule  123),  upon  which  account  it  partakes  of  a  different  character  to  the 
ordinary  legal  remedy  of  buying-in  spoken  of  above,  as  far  as  members 
of  the  public  go.  It  is,  on  this  account,  a  very  imperfect  and  one-sided 
remedy,  because  the  official  buying-in  is  done  publicly,  and  frequently 
it  is  impossible  to  get  one  member  of  the  house  to  sell  to  the  buying-in 
official  as  against  another  member.  It  will  be  observed  that  this  remedy 
is  confined  to  the  issuer  of  the  ticket,  that  is  the  member  to  whom  delivery 
has  to  be  made.  Intermediaries  who  have  passed  the  ticket  on  cannot 
protect  themselves  in  this  way,  though,  of  course,  they  may  be  liable 
where  the  issuer  of  the  ticket  buys  in  for  non-delivery.  Again,  the 
issuer  of  the  ticket  who  buys  in  does  so  in  strictness,  against  his 
immediate  seller;  but  the  deliverer  or  any  other  person  who  fails  to 
deliver  would  be  made  responsible  by  the  committee.  The  buying-in 
remedy  is  often  resorted  to  in  the  case  of  what  is  known  as  a  corner — 
that  is,  where  persons  have  sold  the  shares  of  new  companies  without 
first  making  sure  of  their  being  able  to  deliver  either  by  obtaining 
an  allotment  or  otherwise ;  and  where  the  allotment  is  made  to  a  few 
friends  of  the  promoters  with  conditions  against  selling,  the  premium 
to  which  these  shares  can  be  run  up  against  those  who  have  oversold 
is  sometimes  considerable.  See,  for  an  instance  of  this,  Salaman  v. 
Warner,  1891,  65  L.  T.  N.  S.  132.  By  rule  124  the  committee  may 
suspend  the  buying-in  of  securities  when  desirable  "in  the  general 
interest."  It  was  held  in  Union  Corporation  v.  Charrington,  1902, 
8  Com.  Ca.  99,  that  the  committee  had  this  power  under  rule  20, 
which  gave  them  a  general  power  to  dispense  with  the  strict  enforce- 
ment of  any  of  the  rules  and  regulations. 

II.  The  Remedies  of  the  Seller. — First,  at  Law. — (a)  Shares  Fully 
Paid. — Here  again  the  remedy  is  probably  that  of  selling  out  and  suing 
for  the  difference,  though  specific  performance  might  be  available  if  the 
shares  were  unmarketable. 

ih)  Shares  not  Fully  Paid. — In  this  case  there  is  no  doubt  that  an 
action  for  specific  performance  does  lie  so  that  the  seller  may  be  relieved 
from  liability  to  future  calls.  The  relation  of  seller  and  buyer  of  shares 
is  that  of  trustee  and  c.  q.  t.,  one  of  the  ordinary  incidents  of  which  is  that 
the  former  is  entitled  to  be  indemnified  by  the  latter  against  any  liability 
he  may  incur  in  the  course  of  his  trusteeship  (see  Kellock  v.  Enthoven, 
1874,  L.  R.  9  Q.  B.  241). 

The  seller  does  not  guarantee  to  the  buyer  that  the  company  will 
register  the  transfer,  which,  as  we  have  seen  above,  will  alone  confer 
a  full  legal  title  on  the  buyer  (see  Clarke  v.  London  Founders  Co.,  1888, 
20  Q.  B.  D.  576). 

Registration  maybe  impossible  for  two  reasons — (1)  A  power  in  the 
articles  of  the  company  to  refuse ;  (2)  a  winding-up  may  supervene 
before  the  transfer  is  completed  whereby  registration  is  impossible 
under  sec.  153  of  the  Companies  Act  (see  Bowring  v.  Shepherd,  1871, 
L.  R.  6  Q.  B.  309). 

Second,  hy  the  Rules  of  the  Stock  Exchange. — By  rule  103,  where  the 
deliverer  does  not  receive  a  ticket,  with  the  contents  specified  above, 
by  three  o'clock  on  the  ticket  day,  he  may  sell  out  the  securities  on 
any  subsequent  day.  This  remedy,  it  will  be  observed,  is  confined 
to  non-receipt  of  the  name  ticket;    it  is  not  a  remedy  for  non-pay- 


636  STOCK  EXCHANGE 

ment.  In  the  latter  case  the  issuer  of  the  ticket  is  declared  a 
defaulter,  and  his  account  is  closed  in  the  manner  provided  by  the 
rules  (rule  177). 

In  the  case  of  shares  not  fully  paid  the  legal  rights  of  members  of 
the  house  have  been  the  subject  of  numerous  decisions.  A.,  a  broker, 
sells  shares  to  B.,  a  jobber,  who  during  the  same  account  resells  them 
to  another  broker  acting  for  a  client.  This  broker,  on  name  day,  passes 
the  name  of  his  client ;  before  the  completion  or  registration  of  the 
transfer,  the  company  is  wound  up,  so  that,  as  above  explained,  the 
transfer  cannot  be  registered.  A.  or  his  client  remains  on  the  register 
of  the  company,  and  so  is  primarily  liable  for  the  balance  uncalled  on 
the  shares.  We  saw  above  that  in  the  ordinary  way  the  purchaser  is 
liable  to  indemnify  his  seller  against  liability,  and  that  he  cannot  evade 
this  liability  by  having  resold  the  shares  to  somebody  else.  This  would 
be  the  ordinary  rule  in  the  case  of  a  purchase  of  a  lease.  The  purchaser 
might  possibly  call  on  the  vendor  to  execute  an  assignment  of  the  lease 
to  a  sub-purchaser,  but  the  vendor  would  always  be  entitled  to  be 
indemnified  against  covenants,  etc.,  by  his  immediate  purchaser.  The 
failure  of  Overend,  Gurney  &  Co.  led  to  a  great  deal  of  litigation  in 
respect  of  circumstances  of  which  the  above  is  a  simple  instance.  The 
difficulty  was  to  see  how  the  jobber  could  claim  to  be  released  from 
his  liability  as  purchaser.  The  Courts  of  first  instance  decided  that 
he  could  not  claim  to  be  released,  and  that  his  liability  to  indemnify 
the  seller  remained  for  an  indefinite  time.  In  the  Court  of  Appeal, 
however,  the  case  for  the  jobber  was  put  in  this  way.  By  the  custom 
of  the  Stock  Exchange,  the  jobber  who  has  passed  a  name  on  a  ticket 
issued  by  somebody  else  than  himself,  can  require  the  deliverer  to 
transfer  the  shares  into  the  name  of  the  transferee  passed  on  the  ticket. 
The  rules  give  a  period  of  ten  days  after  settling  day  for  the  deliverer 
to  complete,  and  he  can  during  this  period  inquire  with  reference  to 
the  name  passed  to  see  if  it  is  that  of  a  responsible  person  who  may 
be  able  to  pay  the  calls.  If  for  any  reason  it  is  not,  he  can  during  this 
period  call  on  the  jobber  to  give  a  better  name,  but,  having  once  com- 
pleted without  objection  taken,  he  accepts  the  name  of  the  transferee 
thus  passed  (unless  it  be  the  name  of  a  person  under  incapacity,  e.g.  an 
infant),  and  then,  according  to  the  custom,  the  jobber  is  discharged  from 
further  liability.  Although  it  was  argued  that  this  custom  was  un- 
reasonable, it  was  held  that  as  it  facilitated  business  on  the  Stock 
Exchange,  there  was  nothing  unreasonable  in  it,  and  that  as  the  broker 
had  actually  made  the  bargain  with  the  jobber  on  the  footing  of  this 
custom,  the  client  could  not  in  part  ratify  the  bargain  and  at  the  same 
time  reject  the  custom.  The  above  is  a  short  account  of  the  effect  or 
result  of  the  litigation  which  sprang  up  out  of  the  failure  of  Overend, 
Gurney  &  Co.  For  the  variations  of  circumstance  in  the  different 
decisions  reference  must  be  made  to  the  cases  of  Bowring  v.  Slufherd, 
1871,  L.  K.  6  Q.  B.  609;  Maxied  v.  Paine,  1876,  6  Ex.  132;  Grissell  v. 
Bristowe,  1868,  L.  R.  4  C.  P.  36 ;  Nickalh  v.  Merry,  1875,  L.  E.  7  H.  L. 
530;  Stutfield's  Rules  and  Usages  of  the  Stock  Exchange. 

We  must  finally  consider  one  or  two  incidental  rights  between  the 
parties  to  a  Stock  Exchange  transaction. 

(1)  Dividends. — The  rule  is  that  every  bargain  is  "cum  dividend," 
i.e.  the  buyer  is  entitled  to  the  next  dividend  unless  at  the  time  of 
the  contract  the  security  is  quoted  "  ex  div."  (see  rule  91).  By  rule  102 
the  seller  is  responsible  for  all  dividends  received  until  the  transferee 


STOCK  EXCHANGE  637 

has  had  time  to  lodge  the  transfer  for  registration.  Until  registration, 
whereby  alone  the  deliverer's  name  will  become  erased  from  the  share 
register,  he  will  alone  be  recognised  by  the  company ;  therefore  all 
dividend  warrants  will  be  paid  to  him,  he  having  to  account  for  the 
amount  to  the  purchaser.  Of  course,  not  only  the  deliverer  but  the 
intermediate  seller  is  also  responsible  for  the  amount,  though  he  may 
never  receive  the  dividend  warrant  himself.  This  liability  would  also 
attach  to  an  ordinary  sale  of  shares  outside  the  Stock  Exchange  (see 
Homersham  v.  Black,  1878,  4  Ex.  D.  24). 

(2)  Rights  in  Respect  of  New  Capital  Issued. — By  rule  94  the  buyer 
is  entitled  to  new  shares  issued  in  right  of  old.  This,  of  course,  is  only 
important  where  the  new  shares  are  issued  at  a  price  below  the  market 
price  of  the  old,  so  that  the  letter  of  allotment  will  fetch  something  on 
a  sale  (see  Stuart  v.  Lupton,  22  W.  R.  855). 

(3)  Prepaying  Calls. — Sometimes  at  the  time  of  delivery  a  call  has 
been  made  but  is  not  due.  By  rule  109  the  deliverer  may  prepay  this 
and  claim  the  amount  immediately  from  the  issuer  of  the  ticket ;  the 
reason  being  that  some  companies  refuse  to  register  transfers  while  a 
call  is  pending. 

Defaulters. — Eules  147-166  are  devoted  to  the  subject  of  defaulters, 
and  dealing  with  their  contracts  and  estates.  When  a  man  is  unable 
to  meet  his  engagements  either  he  or  another  member  announces  the 
fact  to  the  proper  officials  and  he  is  then  declared  a  defaulter.  The 
first  immediate  result  of  this  is  that  he  ceases  to  be  a  member  of  the 
house.  The  next  result  is  that  all  the  bargains  in  any  securities  which 
he  has  open  at  the  time  are  automatically  closed  at  the  making-up  price 
of  the  day.  A.,  a  broker,  has  bought  a  hundred  shares  from  B.,  a  jobber, 
at  par  on  behalf  of  C,  A.'s  client ;  on  A.  being  declared  a  defaulter  this 
bargain  is  closed  as  between  the  broker  and  the  jobber,  that  is  to  say, 
the  hundred  shares  are  repurchased  by  the  jobber  at  the  price  of  the 
day,  which  is,  say,  15s.,  leaving  the  jobber  to  prove  against  the  broker's 
estate  for  £25,  the  difference  between  the  original  and  closing  price. 
If  the  price  had  been  25s.  the  jobber  would  have  had  to  pay  £25  to  the 
broker's  estate.  As  to  the  position  of  the  client,  the  following  is  the 
history  of  the  decisions.  First,  as  between  the  broker's  estate  and  the 
client,  say  the  difference  was  adverse  to  the  client's  as  in  the  first 
instance  taken.  In  Duncan  v.  Hill,  L.  R.  1873,  8  Ex.  242,  it  was  sought 
to  make  the  client  liable  to  the  broker's  estate  for  the  difference  in  the 
same  way  as  if  the  shares  had  been  sold  at  a  loss  without  the  broker's 
default,  but  it  was  held  that  as  these  differences  were  constituted  by  the 
account  being  closed  in  consequence  of  the  broker's  default  the  client  could 
not  be  made  liable.  The  next  case  was  Hartas  v.  Ribbons,  22  Q.  B.  D.  254. 
Here  the  case  was  carried  one  step  further  by  the  fact  that  it  was  alleged 
that  the  client  had  chosen  to  adopt  the  official  closing,  and  evidence 
was  given  that  the  client  had  the  following  options — to  call  on  the 
jobber  to  complete  the  bargain  direct  with  himself;  to  do  the  same 
through  another  broker ;  or  to  accept  the  closing  at  the  ofticial  prices. 
As  it  was  proved  that  he  had  adopted  the  latter  course  it  was  held  that 
he  was  liable  for  the  differences.  Then,  in  Anderson  v.  Beard,  [1900] 
2  Q.  B.  260,  the  matter  was  again  put  on  a  slightly  different  footing, 
and  it  was  held  that  he  was  bound  to  adopt  one  or  other  of  the  above- 
named  courses,  and  that  if  he  did  not  exercise  any  election  the  contract 
still  remained  open  as  between  the  client  and  the  jobber,  who  could  call 
upon  him  in  that  case  to  take  up  the  shares  and  pay  for  them,  and  that 


638  STOCK  EXCHANGE 

if  he  refused  to  do  so  the  jobber  could  sell  out  the  shares  and  charge 
him  with  any  loss  in  price  up  to  the  time  of  such  selling  out.  This 
decision  was  given  without  any  express  evidence  as  to  any  custom  of 
the  Stock  Exchange. 

So  far  the  matter  appeared  to  be  left  optional  with  the  client  as  to 
what  course  he  would  adopt  on  his  broker's  default.  But  in  the  next 
case,  Levitt  v,  Hamllett,  [1901]  2  K.  B.  53,  evidence  was  given  to  the 
effect  that  no  such  option  existed  in  favour  of  the  client,  and  that  both 
he  and  the  jobber  were  unaffected  by  any  dealings  with  the  broker's 
estate  through  the  latter's  default.  To  this  evidence  there  was  no  con- 
tradiction, and  the  decision  both  of  the  Court  below  and  of  the  Court 
of  Appeal  adopted  the  evidence  of  custom  so  given ;  held  therefore  that 
in  any  case  both  jobber  and  client  were  bound  by  their  contract,  and 
that  the  clients  having  refused  to  complete  the  jobber  was  entitled  to 
sell  out  and  recover  the  loss  from  him. 

But  the  jobber's  rights  against  the  clients  do  not  affect  the  former's 
rights  as  against  the  broker's  estate.  In  Exparte  Ward,  1882, 20  Ch.  D. 
361,  it  was  held  that  the  jobber  could  sue  the  broker  for  the  differences 
constituted  by  forced  closing  even  though  he  had  received  a  dividend 
in  respect  of  them  out  of  the  broker's  estate,  and  in  Ex  parte  Ward,  1882, 
22  Ch.  D.  132,  it  was  further  held  that  such  a  claim  constituted  a 
liquidated  demand  which  could  be  made  the  foundation  of  bankruptcy 
proceedings.  These  latter  decisions  were  affirmed  in  the  House  of  Lords 
in  Mendelssohn  v.  Eatcliff,  [1904]  A.  C.  456.  In  Stoneham  v.  Wynam, 
1901,  6  Com.  Ca.  174,  it  was  further  held  that  the  fact  that  a  jobber 
had  received  either  a  dividend  or  payment  in  full  from  the  broker's 
estate  did  not  amount  to  an  election  to  sue  the  agent  so  as  to  release 
the  principal  according  to  the  ordinary  rules,  seeing  that  the  jobber 
being  a  member  of  the  house  was  bound  by  the  rules,  and  therefore 
had  no  option  in  regard  to  the  broker's  estate.  This  decision  was  of 
course  only  in  consonance  with  those  in  Ward's  Case. 

It  would  seem,  therefore,  from  the  above  decisions  that  the  Court 
regards  the  rules  as  to  closing  defaulter's  estates  as  being  of  a  domestic 
character  only,  regulating  the  relations  between  the  members  of  the 
house  for  the  purpose  of  settling  their  obligations  on  contracts  between 
themselves,  and  in  no  way  affecting  the  rights  of  outsiders  on  whose 
behalf  such  contracts  were  made.  In  a  recent  case  this  view  of  the 
matter  had  been  applied  to  transactions  of  loan  effected  by  a  broker  on 
behalf  of  a  client  with  a  jobber.  In  Ponsole  v.  Webber,  [1908]  1  Ch. 
254,  the  plaintiff,  the  client,  through  a  broker  borrowed  money  from 
the  defendant,  the  jobber,  on  the  security  of  certain  shares  repayable 
on  a  given  day.  Before  that  day  the  broker  was  declared  a  defaulter ; 
by  rule  160  in  cases  of  loan  the  creditor  as  a  defaulting  member  must 
either  realise  his  securities  at  once  or  take  the  security  at  the  price  of 
the  day,  which  latter  course  was  adopted  in  this  case.  Some  time  after- 
wards the  defendant  sold  the  shares  at  a  price  much  in  excess  of  the 
amount  of  the  loan.  The  plaintiff  sued  as  mortgagor  to  redeem  the 
shares  or  claim  the  balance  left  of  the  proceeds  of  sale.  The  defendant 
contended  that  by  virtue  of  the  above  rule  he  had  practically  fore- 
closed the  shares,  and  therefore  they  became  his  absolute  property, 
and  that  he  was  entitled  to  retain  the  balance.  Held  that  the  above 
rule,  like  the  other  defaulter  rules,  only  applied  to  the  transactions  of 
members  inter  se,  and  the  defendant  therefore  retained  the  shares  as 
mortgagee,  and  must  account  for  the  surplus  realised  on  sale. 


STOCK  EXCHANGE  639 

The  Eules  entrust  the  Official  Assignees  with  the  duty  of  collecting 
defaulters'  assets,  which  assets  when  realised  are,  according  to  the  rules, 
to  be  distributed  in  a  manner  which  gives  preference  to  Stock  Exchange 
creditors,  or  at  all  events  to  creditors  in  respect  of  Stock  Exchange  trans- 
actions. In  Tomkins  v.  Saffery,  3  App.  Ca.  213,  the  defaulter  handed  to 
the  assignee  a  cheque  for  about  £5000,  the  amount  of  his  then  bank 
balance,  which  under  the  circumstances  constituted  the  whole  of  the 
assets  he  then  had  left.  The  defaulter's  trustee  in  bankruptcy  sued  the 
Official  Assignee  to  recover  this  amount  on  the  ground  that  this  assign- 
ment amounted  to  an  act  of  bankruptcy.  It  was  held  that  as  under  the 
rules  it  was  the  defaulter's  duty  to  hand  over  the  whole  of  his  assets  to 
the  Official  Assignee,  and  that  the  giving  of  the  cheque  was  in  compliance 
with  this  rule,  under  which  a  preference  was  given  to  the  Stock  Exchange 
creditors ;  that  it  was  therefore  an  act  of  bankruptcy  and  the  plaintiff 
was  entitled  to  recover.  In  the  course  of  this  case  the  expression  was 
used  that  the  defaulter  had  practically  made  a  "  cessio  honoTiim  "  to  the 
Official  Assignee. 

In  Ex  'parte  Grant,  13  Ch.  D.  667,  the  defaulter's  contracts  had  been 
closed  under  the  rules  above  mentioned,  such  closing  showing  a  result 
in  differences  in  favour  of  the  broker's  estate,  which  differences  were 
collected  by  the  Official  Assignee  as  part  of  the  assets.  The  defaulter's 
trustee  in  bankruptcy  sued  to  recover  the  amount  of  these  differences  on 
the  authority  of  the  last  case,  but  held  that  these  differences  were  con- 
stituted as  a  special  fund  by  virtue  of  the  rules  of  the  Stock  Exchange. 
The  trustee  in  bankruptcy  therefore  could  not  claim  the  differences 
under  the  rules  without  complying  with  the  rules  which  regulated  their 
distribution.  These  differences  differed  from  the  money  paid  over  in 
the  last  case  because  there  the  defaulter's  bank  balance  did  not  owe  its 
existence  to  the  rules  of  the  Stock  Exchange.  It  is  clear,  therefore, 
that  the  rights  of  a  trustee  in  bankruptcy  can  be  asserted  in  the  case 
of  ordinary  assets  but  not  in  the  case  of  differences.  See  a  later  case 
illustrating  this  distinction,  Kirig  v.  Hutton,  [1900]  2  Q.  B.  504. 

In  recent  cases  the  Courts  have  put  the  rights  of  the  Official  Assignee 
somewhat  higher.  They  have  held  that  the  effect  of  the  Stock  Exchange 
rules  is  to  effect,  at  all  events,  an  equitable  assignment  to  him  of  all 
the  defaulter's  assets  except  differences.  In  Richardson  v.  Stormont, 
[1900]  1  Q.  B.  701,  part  of  the  defaulter's  assets  consisted  of  shares 
which  he  contracted  to  sell  to  defendants.  The  latter  knew  the 
defaulter's  position,  for  they  had  lodged  claim  for  the  debt  against  the 
estate,  and  they  claimed  to  set  off  this  debt  against  the  price  of  his 
shares.  It  was  held  on  the  evidence  that  in  purchasing  these  shares  the 
defendants  knew  of  the  claim  of  the  Official  Assignee  and  had  dealt  with 
the  defaulter  as  his  agent,  and  that  as  the  effect  of  the  rules  was  to  vest 
the  right  to  these  shares  in  the  plaintiff',  the  defendant's  claim  to  set  off 
could  not  be  allowed.  Again,  in  Lomas  v.  Greaves,  [1904]  2  K.  B.  557, 
the  defendant  was  a  defaulting  broker  and  the  Official  Assignee  had 
brought  an  action  in  his  name  against  the  client  to  recover  moneys  due. 
The  defendant  in  that  action  paid  a  sum  into  Court  in  discharge  of  the 
claim.  The  plaintiff  in  present  action  claimed  a  charging  order  on  this 
money  in  Court,  but  it  was  held  that  this  was  part  of  the  assets  of  the 
defendant  Greaves,  and  that  under  the  Rules  in  question  it  had  vested 
in  the  Official  Assignee,  whose  claim  was  therefore  paramount  to  that  of 
the  plaintiff. 

It  must  be  admitted  that  these  cases  go  a  great  deal  further  than 

( 


640  STOCK  EXCHANGE 

Tomkins  v.  Saffery,  uhi  supra.  All  that  was  said  there  was  that  the 
act  of  the  defaulter  himself  amounted  to  "  cessio  bonorum,"  and  therefore 
to  an  act  of  bankruptcy.  In  these  later  cases  the  Courts  have  held  that 
the  mere  act  of  being  declared  a  defaulter  of  itself  effected  this  general 
assignment.  There  would  seem  to  be  no  parallel  in  any  other  part  of 
our  law  to  such  an  effect  given  to  what  are  merely  club  rules,  and  it 
practically  makes  the  fact  of  being  declared  a  defaulter  in  itself  an  act 
of  bankruptcy. 

Broker  and  Client. — It  remains  to  add  a  few  words  on  the  relations 
between  broker  and  client.  Of  course  the  cardinal  point  in  the  rela- 
tions between  the  two  is  that  the  broker  acts  as  an  agent,  in  which  case 
he  receives  his  client's  instructions  to  carry  out  the  transaction  for  the 
client  on  the  Stock  Exchange.  It  is  not  in  the  course  of  his  business  to 
act,  and  therefore  he  must  not  act,  as  principal.  This  is  so  both  by  the 
general  law  and  by  the  rules  of  the  Stock  Exchange  (see  rule  75).  We 
have  already  given  an  account  of  the  way  in  which  bargains  are  effected 
on  the  Stock  Exchange ;  in  a  large  number  of  cases  these  will  be  by 
brokers  acting  for  outside  clients.  The  following  points  would  seem,  in 
the  main,  to  constitute  the  legal  relations  between  the  two : — 1.  Having 
effected  the  bargain  it  is  the  broker's  duty  to  make  out  a  contract  note, 
stamp  it  and  transmit  it  to  the  client.  The  proper  stamp  is  between  £5 
and  under  £100,  Id. ;  for  £100  or  over.  Is.  The  Acts  which  regulate 
the  matter  are  as  follows : — The  Stamp  Act  of  1891,  ss.  52  and  53;  the 
Customs  Acts  of  1893,  s.  3;  the  Eevenue  Act  of  1898,  s.  7  (1);  the 
Finance  Act  of  1899,  s.  13.  The  effect  of  these  Acts  is  that  a  broker 
who  omits  to  send  a  properly  stamped  contract  note  to  his  client  is  not 
only  liable  to  a  penalty,  but  is  precluded  from  recovering  any  indemnity 
or  commission  in  respect  of  his  work.  It  must  be  noticed  that  carrying 
over  transactions  involve  a  double  contract  note,  seeing  that,  as  described 
above,  they  consist  of  closing  the  old  account  and  opening  a  new  one. 

2.  Indemnity. — The  broker,  like  any  other  agent,  is  entitled  to  be 
indemnified  against  all  liabilities  he  incurs  by  entering  into  bargains  on 
his  client's  behalf,  he  being,  as  between  himself  and  other  members,  a 
principal.  If  he  has  bought  for  a  client  it  is  the  client's  duty  to  put 
him  in  funds  to  enable  him  to  complete  the  purchase,  the  broker  is  not 
bound,  as  between  himself  and  the  client,  to  find  the  money  and  look  to 
the  client  for  reimbursement  (see  Stock  and  Share  Auction  Company  v. 
Galmoye,  1887,  3  T.  L.  K.  808).  If  he  has  sold  for  the  client  it  is  the 
client's  duty  to  deliver  to  him  share  certificates  and  transfers  to  enable 
him  to  complete  the  sale,  otherwise  the  client  has  to  indemnify  the 
broker  against  any  loss  sustained  on  "  buying  in,"  as  to  which  see  above. 
He  must  also  indemnify  the  broker  against  liabilities  indirectly  arising 
out  of  the  transaction,  and  in  such  matters,  as  the  broker  is  bound  by 
the  decision  of  the  committee,  the  client  may  indirectly  be  bound  also 
(see  Harker  v.  Edwards,  1887,  57  L.  J.  Q.  B.  147).  In  this  case  the 
committee  decided  that  the  broker  must  account  to  a  purchaser  for 
a  dividend,  and  the  Court  held  the  client  liable  to  indemnify  the 
broker  in  this  matter.  Of  course,  on  the  other  hand,  if  a  broker  buys 
for  a  client  he  must  deliver  the  shares  to  him  within  a  reasonable  time, 
otherwise  the  client  can  refuse  to  accept  (see  Benjamin  v.  Barnet,  1903, 
8  Com.  Cas.  244).  Although  bargains  made  for  clients  are  frequently  of 
a  speculative  character,  in  which  the  client  expects  to  pay  or  receive 
differences,  and  not  to  be  called  on  to  complete  the  purchase  or  sale, 
this  does  not  constitute  the  bargain  a  wager  contract,  therefore  the 


STOCK  EXCHANGE  641 

Gaming  Act  of  1892  does  not  prevent  the  broker  from  recovering 
indemnity  (see  as  to  this,  Thacker  v.  Hardy,  1878,  4  Q.  B.  D.  685,  and 
Forget  v.  Ostigny,  [1895]  A.  C.  318).  We  have,  above,  given  an  account 
of  the  Utigation  which  has  arisen  where  the  broker  has  been  declared  a 
defaulter,  and  it  was  held  in  such  case  that  the  broker's  estate  could  not 
claim  indemnity  against  the  client ;  but  the  recent  decisions  have  shown 
that  the  transaction  with  the  client  is  not  affected  by  this,  and  the  jobber 
with  whom  the  bargain  was  made  can  call  on  the  client,  or  be  called  on 
by  him,  to  complete. 

3.  The  broker  being  employed  as  an  agent  must  not  act  as  principal, 
at  all  events  without  informing  the  client  of  the  fact ;  that  is,  he  must 
not  buy  the  investment  himself  from  his  client,  or  he  must  not  sell  him 
his  own  securities.  This  is  ordinary  law  in  relation  to  principal  and 
agent.  It  is  not  infrequently  disregarded  in  "carrying  over"  trans- 
actions; that  is  to  say,  the  broker  frequently,  instead  of  getting  his 
client's  bargain  "  continued "  in  the  house,  would  carry  it  over  him- 
self, most  likely  making  arrangements  with  his  own  bank  for  the 
purpose.  In  this  case  the  client  not  only  suffers  no  loss,  but  ia 
probably  benefited  by  it;  in  the  case  of  a  bull  account  carrying  over 
in  the  house  always  weakens  the  market;  moreover,  a  broker  could 
probably  do  it  at  a  better  rate  than  a  jobber  would  charge.  But 
these  considerations  do  not  alter  the  legal  aspect  that  the  broker 
ought  to  disclose  the  fact  to  the  client  that  he  is  acting  as  principal. 

But  frequently  a  broker  will  have  orders  to  buy  the  same  shares 
from  two  or  more  different  clients,  and,  as  a  matter  of  preujtice,  he 
will  often  buy  the  whole  lot  in  one  lump  from  one  jobber.  In  the 
well-known  case  of  Rohinson  v.  Mollet,  1874,  L.  R.  7  H.  L.  802,  a 
tallow  broker  had  done  the  same  thing,  and  sought  to  make  one  of 
his  clients  liable  on  a  part  of  that  bargain  sufficient  to  cover  the 
client's  instructions.  It  was  held,  however,  that  the  broker  in  such 
case  could  not  enforce  liability  against  the  client,  because  the  con- 
tract he  had  made  with  the  other  party  was  in  one  lump,  and  the 
client,  therefore,  whose  instructions  related  to  a  smaller  quantity  could 
not  enforce  a  contract  for  the  smaller  amount  against  that  party;  in 
fact,  the  contract  for  which  he  gave  instructions  to  his  broker  had 
never  been  made.  As  to  how  far  this  decision  is  applicable  to  a 
similar  state  of  circumstances  in  a  Stock  Exchange  transaction  is 
not  quite  clear.  On  the  one  hand,  in  Levitt  v.  Hamhlett,  [1900] 
2  Q.  B.  18,  where  a  broker  had  executed  two  orders  in  one  lump,  it 
was  held  that  neither  of  the  outside  clients  could  be  liable  on  this- 
transaction  because  their  individual  bargains  had  not  been  made  on 
the  Stock  Exchange.  On  the  other  hand,  in  Scott  and  Horton  v. 
Godfrey,  [1901]  2  K.  B.  726,  evidence  was  given  to  the  effect  that 
it  was  customary  for  brokers  to  deal  in  that  way  where  they  were 
instructed  by  more  than  one  client.  It  appeared  also  that  the  broker 
had  appropriated  in  his  own  books  the  right  amount  of  the  invest- 
ment to  each  client.  On  this  it  was  held  that  privity  was  established 
between  each  client  and  the  jobber.  In  this  state  of  the  authorities 
the  matter  cannot  be  considered  as  settled,  but  it  is  worth  observing 
that  there  may  be  a  difference  between  a  case  on  the  Stock  Exchange 
and  a  case  in  a  produce  market.  On  the  Stock  Exchange  it  is  clear 
that  if  a  jobber  sold  a  thousand  shares  to  a  broker,  if  the  broker 
hands  the  jobber  a  ticket  (see  above  as  to  this)  for  five  hundred  the 
jobber  is  bound  to  deliver  that  number.  But  this  would  not  be  so 
VOL.  XIII.  41 


642  STOCK  EXCHANGE 

in  an  ordinary  contract  for  sale  of  goods.     The  seller  cannot  be  called 
on  to  deliver  less  than  the  whole  amount. 

4.  Brokerage. — Having  carried  out  the  client's  transactions  the 
broker  is  entitled  to  charge  something  for  brokerage  or  commission. 
The  amount  of  this  varies  according  to  the  nature  of  the  security 
and  the  position  of  the  broker.  For  stocks  the  amount  varies  from 
a  quarter  to  a  half  per  cent. ;  for  shares,  say  of  the  value  of  one 
pound,  it  varies  from  threepence  to  sixpence,  but  there  is  no  official 
scale  of  charges.  The  broker  can  charge  what  he  pleases,  or  make 
arrangements  with  his  clients.  Eecent  correspondence  has  disclosed 
the  practice  by  some  brokers  of  charging  double  commission ;  that  is, 
if  he  gets  an  order  to  sell,  instead  of  doing  so  in  the  market,  he 
finds  another  client  who  is  willing  to  buy,  so  he  arranges  the  matter 
between  the  two,  charging  a  commission  to  each.  The  legality  of  this 
course  is  very  questionable  (see  rule  69). 

5.  As  to  the  extent  of  the  authority  of  the  broker  he  can  and  should 
only  deal  on  the  Stock  Exchange,  and  in  accordance  with  the  customs  of 
that  market.  If  he  dealt  outside  without  his  client's  knowledge  it 
might  be  held  that  this  was  not  within  the  scope  of  his  authority 
(and  see  rule  69).  But  when  it  is  said  that  he  must  deal  according  to 
custom  or  usage,  that  means  that  such  custom  must  be  legal  and  reason- 
able. For  example,  there  have  been  cases  where  a  broker  receives 
instructions  to  sell  bank  shares.  Now  by  Leman's  Act  of  1867  a 
contract  for  the  sale  of  bank  shares  must  be  in  writing,  and  contain  the 
name  of  the  seller;  but  the  practice  on  the  Stock  Exchange  is  to  dis- 
regard this,  and  all  bargains  are  made  by  word  of  mouth.  In  such  cases 
it  has  been  held  that  the  client  who  does  not  know  of  such  custom  is 
entitled  to  repudiate  the  transaction  (see  Neilson  v.  James,  1882,  9  Q.  B.  D. 
546 ;  and  Seymour  v.  Bridge,  1885, 14  Q.  B.  D.  460).  Of  course  this  may 
put  the  broker  in  a  difficult  position,  but  his  only  course  in  receiving 
instructions  to  deal  in  bank  shares  is  to  inform  his  client  of  the  custom. 
In  the  ordinary  course  the  broker  will  deal  for  the  current  account,  i.e. 
the  next  settling  day,  but  in  shares  of  new  companies  for  the  special 
settlement  (see  rule  81).  It  seems  clear  that  authority  to  deal  is 
limited  to  the  existing  account  {Lawford  v.  Harris,  1896,  12  T.  L.  E. 
275). 

6.  Brokers  Right  to  Close  Client's  Account. — Of  course  his  contract 
with  the  client  is  that  the  bargain  which  he  has  made  shall  be  kept  open 
for  completion  until  the  following  account.  In  certain  cases,  however, 
the  broker  has  the  right  to  close  the  client's  account  prematurely.  Such 
cases  are  where  the  client  neglects  to  pay  the  broker  what  he  owes  on 
the  account  on  the  settling  day,  but  he  has  this  right  by  custom,  which 
is  established  in  Davis  v.  Howard,  1890,  24  Q.  B.  D.  691.  Also  in  cases 
where  the  broker  has  paid  for  the  shares  himself,  and  taken  them  off  the 
market,  if  he  has  sold  without  the  client's  instructions  he  can  recover 
the  amount  which  he  paid  on  taking  them  up,  crediting  the  client  with 
what  they  fetched  on  sale ;  but  if  he  sold  prematurely  he  might  be  liable 
to  the  client  for  any  depreciation  (see  Scrimgeour's  Case,  1873,  L.  E.  8 
Ch.  921,  and  Ellis  v.  Pond,  [1898]  1  Q.  B.  426);  and  in  Michael  v.  Hart, 
where  the  broker  had  sold  an  open  account  before  the  account  day,  it 
was  held  that  the  damages  for  which  he  was  liable  would  be  measured 
by  the  difference  between  the  contract  price  and  the  price  they  would 
have  fetched  on  settling  day. 

It  would  seem  that  the  broker  has  the  same  right  where  the  client 


STOLEN  GOODS  643 

for  whom  he  has  an  account  open  dies  or  becomes  insolvent  before  the 
settling  (lay  {per  Jessel,  M.R.,  in  Lacey  v.  Hill,  1874,  L.  R.  18  Eq.,  at 
190 ;  and  Haas  v.  DurraiU,  [1900]  1  Ch.  209). 

7.  There  is  no  reason  for  suggesting  that  a  broker  is  a  "  del  credere  " 
agent,  and,  therefore,  liable  to  his  client  on  the  default  of  the  jobber 
{Gill  V.  Shepherd,  1902,  8  Com.  Cas.  48). 

[Authorities. — Stutfield's  Eules  and  Usages  of  the  Stock  JExchange.'] 

Stock-in-trade. — This  phrase  would  seem  to  include  all 
chattels  which  a  person  has  acquired  for  use  in  his  trade,  or  for  the 
purpose  of  sale  or  letting  for  hire.  There  appears  to  be  no  judicial 
definition  of  the  term,  but  in  Mliott  v.  Elliott,  1841,  9  Mee.  &  W.  23, 
an  opinion  was  expressed  by  Parke,  B.,  that  a  carriage  in  the  testator's 
carriage  factory,  in  process  of  being  built  to  the  order  of  a  purchaser, 
fell  within  the  term  stock-in-trade ;  so  in  In  re  Richardson,  Richardson 
V.  Pilliner,  1881,  50  L.  J.  Ch.  488,  it  was  decided  that  old  barges 
accepted  by  a  barge  builder  in  part  payment  of  new  ones,  and  let  out 
by  him  on  hire,  formed  part  of  his  stock-in-trade  (see  also  Chapman  v. 
Hayman,  1885,  1  T.  L.  R.  397). 

Stolen  Bill.— By  the  Bills  of  Exchange  Act,  1882,  45  &  46 
Vict.  c.  61,  s.  30  (2),  every  holder  of  a  bill  is  primd  facie  deemed  to  be 
a  holder  in  due  course.  If,  however,  the  bill  has  been  stolen,  and  that 
fact  has  been  proved,  then  the  onus  is  on  the  possessor  to  show  that  he 
gave  value  in  good  faith  {Raphael  v.  Bank  of  England,  1855,  17  C.  B. 
161).  So  the  person  who  has  stolen  a  bill  payable  to  the  order  of 
another  is  a  wrongful  possessor  and  not  a  holder  within  sec.  2  of  the 
Act  {Smith  v.  Union  Bank,  1875,  L  R.  10  Q.  B.  295,  296).  Such  person 
has  no  rights  and  can  create  none  (s.  24).  If,  therefore,  the  holder  of  a 
bill  indorses  it  specially  to  another,  but  it  is  stolen  before  it  reaches  the 
other  and  is  negotiated  through  a  forged  indorsement,  the  property  in 
the  bill  remains  in  the  holder  {Arnold  v.  Cheque  Bank,  1876,  1  C.  P.  D., 
at  p.  584).  To  operate  as  a  discharge,  payment  of  a  bill  must  be  to  the 
holder  as  defined  by  sec.  2,  or  to  some  person  authorised  on  his  behalf 
{s.  59) ;  but  see  sec.  60  as  to  bankers  paying  cheques  under  forged 
indorsements.  See  also  sec.  20  as  to  blank  papers  signed  and  delivered 
to  be  filled  up  by  the  deliveree.  If  a  bill  is  left  in  its  original  form 
possibly  a  person  taking  bond  fide  for  value  and  without  notice  may 
acquire  a  good  title  {Kinyon  v.  Wohlford,  1872,  10  Amer.  R.  165; 
Ingham  v.  Primrose,  1859,  7  C.  B.  N.  S.  82).  But  if  a  blank  acceptance 
is  stolen  and  then  filled  up  as  a  bill,  even  a  holder  in  dufe  course  cannot 
recover  from  the  person  from  whom  it  was  stolen  {Baxendale  v.  Bennett, 
1878,  3  Q.  B.  D.  525). 

See  also  JEmbiricos  v.  Anglo-Austrian  Bank,  [1905]  1  K.  B.  677 ; 
Smith  V.  Frosser,  [1907]  2  K.  B.  735  ;  Macbeth  v.  North  and  South  Wales 
Bank,  [1908]  A.  C.  137 ;  and  Bills  of  Exchange. 

Stolen  Goods. — Where  goods  have  been  stolen,  no  property 
in  them  passes  to  the  thief,  and  he  cannot  give  to  an  innocent  purchaser 
any  title  to  such  goods  as  against  the  original  owner,  except  by  a  sale  in 
Market  Overt  (see  56  &  57  Vict.  c.  71,  s.  22). 

As  every  larceny  involves  a  trespass  to  goods,  the  appropriate  action 
against  the  thief  and  his  accessories  was  by  action  of  trespass  (see  Wells 
v.  Abrahams,  1872,  L.  R.  7  Q.  B.  554).     But  inasmuch  as  the  act  was 


644  STOLEN  GOODS 

felonious,  it  involved  a  forfeiture  to  the  King  of  the  felon's  goods,  which 
were  taken  as  including  those  of  which  he  became  possessed  by  the  felony 
{cp.  13  Edw.  L  Stat.  West.  Sec.  c.  34,  as  to  goods  stolen  on  elopement), 
and  the  true  owner  was  punished  if  he  recovered  them  by  agreeing  not 
to  prosecute  (see  Hush  Money;  Theftbote).  In  1538  (21  Hen.  viii. 
c.  11),  to  obviate  this  hardship  on  the  original  owner,  it  was  provided 
that  if  he  prosecuted  to  conviction,  the  property  in  his  own  goods  should 
then  revest  in  him,  a  provision  which  perfected  his  title  not  only  against 
the  thief,  but  against  all  the  world,  including  purchasers  in  market  overt. 
In  1861  the  Larceny  Act,  c.  96,  s.  100,  extended  the  provision  to  property 
obtained,  etc.,  by  offences  within  that  Act  (including  certain  offences 
not  amounting  to  larceny),  but  excepted  offences  by  trustees,  bankers, 
merchants,  attorneys,  factors,  brokers,  or  other  like  agents  intrusted 
with  the  possession  of  goods  or  documents  of  title  to  goods  (24  &  25 
Vict.  c.  96,  ss.  77-84  as  amended  by  the  Larceny  Act,  1901,  1  Edw.  vii. 
c.  10;  see  R.  v.  Brochwell,  1905,  59  J.  P.  376).  This  distinction  is 
preserved  by  the  terms  of  sees.  8,  9  of  the  Factors  Act,  1889,  and  sec.  25 
of  the  Sale  of  Goods  Act,  1893.  In  consequence  of  Bentley  v.  Vilmont^ 
1887,  12  App.  Gas.  471,  the  law  was  restored  to  the  position  in  which  it 
stood  in  1538  by  sec.  24  (2)  of  the  Sale  of  Goods  Act,  1893,  56  &  57 
Vict.  c.  71,  which  provides  that  where  goods  have  been  obtained  by  fraud 
or  other  wrongful  means  not  amounting  to  larceny,  the  mere  fact  of 
conviction  does  not  revest  the  property  in  the  owner  or  his  personal 
representative  {R.  v.  Walker,  1907,  65  J.  P.  729).  But  where  goods 
obtained  by  fraud  are  in  the  possession  of  the  offender  on  conviction, 
an  order  for  their  restitution  may,  it  would  seem,  be  made  {R.  v.  George, 
1905,  65  J.  P.  729).  The  definition  of  goods  in  the  Sale  of  Goods  Act, 
1893,  is  not  so  wide  as  that  of  property  in  the  Larceny  Act,  1861,  and 
does  not  include  money  or  "  choses  in  action." 

In  most  cases  in  which  the  property  is  obtained  otherwise  than  by 
larceny,  e.g.  by  forgery,  false  pretences,  and  the  like,  property  as  well  as 
possession  passes;  and  while  the  owner  is  in  certain  cases  entitled  to 
repudiate  the  contract  and  reclaim  the  goods,  unless  this  has  been 
effectually  done  before  the  resale,  the  person  who  obtained  the  property 
by  fraud,  and  persons  acquiring  from  him  innocently,  are  protected 
against  the  original  owner  (56  &  57  Vict.  c.  71,  s.  23).  In  each  case 
the  questions  arise,  as  whether  the  obtaining  amounted  to  larceny  by 
a  trick  or  obtaining  by  fraud  (see  (}p2jenheimer  v.  Frazer,  [1907]  2  K.  B. 
50),  or  whether  the  offender  was  a  mercantile  agent  within  the  meaning 
of  the  Factors  Act,  1889  {ihid). 

Where  property  revests  on  conviction,  the  Court  of  trial  may  award 
a  writ  of  restitution,  or  an  order  for  restitution  in  a  summary  manner 
of  the  goods,  or  the  proceeds  of  sale  {R.  v.  Central  Criminal  Court,  1886,. 
18  Q.  B.  D.  314;  R.  v.  Mayor  of  London,  1869,  L.  E.  4  Q.  B.  371),  pro- 
vided that  the  owner  of  the  property,  or  his  personal  representative,  has 
prosecuted,  or  where  in  the  case  of  a  public  prosecution  he  has  given 
reasonable  assistance  to  the  Crown  (24  &  25  Vict.  c.  96,  s.  100 ;  42  &  43 
Vict.  c.  22,  s.  7);  the  order  is  enforced  by  attachment  {R.  v.  Wollez,  I860,. 
8  Cox  C.  C.  337);  but  it  is  not  of  absolute  right  {R.  v.  Ford,  1869,  11 
Cox  C.  C.  320).  But  these  writs  or  orders  cannot  be  issued  with  refer- 
ence to  valuable  securities  where  they  have  on  good  faith  been  paid  or 
discharged  without  any  reasonable  cause  to  suspect  that  they  had  been 
obtained  by  crime  {Chichester  v.  Hill,  1883,  52  L.  J.  Q.  B.  160).  The 
practice  of  stopping  notices,  etc.,  arises  doubtless  from  this  section ;  but 


STOLEN  GOODS  645 

it  appears  that  a  stopping  notice  cannot  affect  the  title  of  a  hond-fide 
holder  of  a  negotiable  instrument,  even  if  it  has  been  stolen.  Under 
the  Criminal  Appeal  Act,  1907,  7  Edw.  vii.  c.  23,  s.  6,  an  appeal  from  a 
conviction  suspends  the  operation  of  restitution  order  made,  and  the 
Appellate  Court  can  vary  the  order.  But  this  enactment  does  not  give 
any  right  of  appeal  to  the  person  against  whom  the  order  is  made  (B.  v. 
miott,  [1908]  2  K.  B.  452).  An  order  which  gives  restitution  both  of 
the  goods  stolen  and  of  the  price  received  for  them  by  the  thief  would 
seem  to  be  bad  (B.  v.  London  Justices,  K.  B.  D.,  October  14,  1908). 

Anciently,  possession  and  property  were  easily  confused ;  whence 
probably  the  rule  as  to  revesting.  The  statute  was  in  larceny  cases 
unnecessary,  except  as  an  inducement  to  prosecute,  as  purchase  in 
market  overt  alone  could  change  the  ownership  of  the  stolen  goods; 
and  the  rule  applied,  and  applies,  even  in  cases  of  larceny  by  a  bailee 
(R.  V.  Macdonald,  1885, 15  Q.  B.  D.  323 ;  Payne  v.  Wilson,  [1895]  2  Q.  B. 
262),  but  not  in  cases  of  bailees  under  hire-purchase  agreements  where 
a  contract,  and  not  a  mere  option  of  sale,  exists  {Helhy  v.  Matthews, 
[1895]  A.  C.  471);  nor,  it  would  seem,  to  bailees  on  sale  or  return 
where  they  have  elected  to  purchase  the  goods  by  dealing  with  them 
in  a  manner  precluding  return  {Kirkham  v.  Attenhoroiigh,  [1897]  1  Q.  B. 
201). 

A  restitution  order  affects  only  the  person  possessed  of  the  goods, 
whether  as  agent  of  the  thief,  or  as  purchaser  or  pledgee  from  him. 
It  absolutely  overrides  any  inchoate  or  possessory  title  in  such  persons ; 
but,  independently  of  its  use  as  a  summary  means  of  restitution,  it  is 
unnecessary  so  far  as  common-law  larceny  is  concerned,  for  the  original 
owner's  title  to  the  goods  is  complete  without  it,  and  without  the  aid  of 
the  revesting  provision  (sec.  24  (1)  of  the  Sale  of  Goods  Act,  1893).  Under 
the  old  system  of  pleading,  and  prior  to  1870  (33  &  34  Vict.  c.  23),  the 
owner  was,  in  the  interest  of  public  justice,  precluded  from  suing  to 
judgment  before  prosecution  and  conviction  of  the  thief  (Burn,  Justice, 
30th  ed.,  vol.  iii.  p.  285).  But  this  rule  is  now  disregarded  (see  Wells  v. 
Abrahams,  1872,  L.  K  7  Q.  B.  554;  Osborn  v.  Gillett,  1873,  L.  R.  8  Ex. 
88 ;  A.  V.  B.,  1889,  24  L.  R  Ir.  235 ;  Hargreave  v.  Spink,  [1892]  1  Q.  B.'25 ; 
Itoscoe,  Nisi  Prius,  18th  ed.),  and  the  grounds  on  which  it  is  rested  are 
unsubstantial  (see  Pollock,  Torts,  7th  ed.). 

Next  must  be  considered  what  the  exact  position  of  the  true  owner 
is  before  conviction  of  the  thief,  with  respect  to  innocent  purchasers 
from  the  thief.  According  to  Lord  Watson  {Bentley  v.  Vilmont,  1887, 
12  App.  Cas.,  at  479),  it  is  a  legal  wrong  to  retake  brevi  mami  before 
conviction  from  a  person  holding  the  goods  under  the  thief ;  and 
Horwood  V.  Smith,  1788,  2  T.  R.  750,  there  accepted  as  good  law,  is  to 
the  effect  that  a  mesne  possessor  acquiring  the  goods  innocently  from 
the  thief,  and  reselling  before  conviction,  is  under  no  liability  in  trover 
to  the  original  owner. 

The  property  revesting  on  conviction,  no  writ  of  restitution  is  neces- 
sary, and  the  owner  can  at  once  sue  in  trover  any  person  who  has  them 
at  the  date  of  conviction,  whether  he  bought  in  market  overt  or  not 
{Golightly  v.  Reynolds,  1772,  Lofft,  88 ;  Scatter  good  v.  Silvester,  1850,  15 
Q.  B.  506),  to  which  the  possessor  has  no  defence  whatever,  and  no 
counterclaim  for  any  expense  incurred  by  him  with  respect  to  the 
stolen  property  {Walker  v.  Matthews,  1882,  8  Q.  B.  D.  109). 

But  having  regard  to  the  common  law,  it  is  hard  to  see  why  the 
owner  is  not  entitled  to  sue  before  conviction,  to  recover  his  goods  from 


646  STONE 

any  person  in  possession  of  them  (except  a  purchaser  in  market  overt) ; 
now  that  the  obstacle  created  by  "  felony  unprosecuted "  is  removed, 
and  if  the  law  is  as  held  in  Horwood  v.  Smith,  swpra,  Hargreave  v.  Spink, 
supra,  must  be  regarded  as  having  been  argued  and  decided  on  a  wholly 
false  basis. 

What  has  been  above  said  relates  to  Courts  of  Eecord  with  criminal 
jurisdiction.  Courts  of  Summary  Jurisdiction  can  exercise  the  powers 
given  by  sec.  100  of  the  Larceny  Act,  1861,  as  to  offences  under  that 
Act  triable  summarily  either  under  that  Act  or  by  virtue  of  the  Summary 
Jurisdiction  Act,  1879,  42  &  43  Vict.  c.  49,  s.  27  (3).  And  in  cases  of 
summary  conviction — (a)  for  knowingly  pawning  the  property  of  another 
without  his  authority,  or  {h)  for  stealing  or  fraudulently  taking  goods 
afterwards  pawned — the  Court  may  order  the  pawnbroker  to  deliver  them 
up  to  the  owner,  with  or  without  requiring  him  to  pay  the  sum  lent  ■ 
according  to  the  circumstances.  This  only  applies  where  the  pawning 
is  for  less  than  £10  (35  &  36  Vict.  c.  93,  ss.  10,  24,  30).  In  the  Metro- 
politan Police  District  there  is  a  similar  provision  without  reference  to 
value  (2  &  3  Vict.  c.  71,  ss.  27,  28),  which  does  not  preclude  resort  to  the 
enactments  already  referred  to. 

Where  property  has  come  into  the  possession  of  the  police  on  a 
criminal  charge,  a  Court  of  Summary  Jurisdiction  may  order  its  delivery 
to  the  owner  if  ascertained  (60  &  61  Vict.  c.  30,  s.  1);  or  its  return  to 
the  accused  person  on  whom  it  was  found,  if  it  be  in  the  interests  of 
justice  (42  &  43  Vict.  c.  49,  s.  44). 

On  conviction  of  an  offence  which  involves  larceny,  the  Court,  if  the 
accused  has  sold  the  property  to  an  innocent  purchaser,  on  restitution 
of  the  property  to  the  owner,  may  order  the  price  paid  by  the  purchaser 
to  be  repaid  to  him  out  of  any  money  found  on  the  convict  when  arrested 
(30  &  31  Vict.  c.  35,  s.  9).  This  provision  is  in  addition  to  that  allow- 
ing compensation  to  a  person  injured  by  a  felony  (33  &  34  Vict.  c.  23, 

8.4). 

The  provisions  above  dealt  with  include  cases  where  the  conviction 
is  only  for  receiving  stolen  goods,  or  for  embezzlement  or  larceny,  etc., 
by  parties  and  joint-owners. 

Under  the  Metropolitan  Police  Courts  Act,  1839,  2  &  3  Vict.  c.  71, 
ss.  24-26,  and  the  Larceny  Act,  1861,  24  &  25  Vict.  c.  96,  ss.  14,  22,  35, 
65,  66,  97,  and  103,  provision  is  made  for  examining  people  by  whom 
property  alleged  to  have  been  stolen  has  been  received  from  the  person 
accused,  and  for  dealing  with  persons  suspected  of  having  or  conveying 
stolen  goods.     As  to  search  for  such  goods,  see  Search  Warrant. 

Advertising  rewards  for  stolen  goods  on  terms  of  not  prosecuting  is 
unlawful  (see  Advertisements  for  Stolen  Property  ;  Hush  Money). 

81^0116. — Cut  blocks  of  stone  prepared  for  use  as  railway  sleepers, 
although  worth  considerably  more  than  unwrought  stone  of  the  same 
weight,  were  treated  as  "  stone,"  and  not  as  "  merchandise,"  for  the  pur- 
poses of  tollage  in  an  Act  which  imposed  tolls  at  different  rates  on  stone 
and  merchandise  {Fisher  v.  Lee,  1840,  12  Ad.  &  E.  622 ;  see  also  Dant  v. 
Moore,  1863,  9  L.  T.  381).  In  a  legal  document  the  word  "  minerals  " 
primd  facie  includes  every  kind  of  stone  (Macswinney,  Mines,  3rd  ed., 
p.  9). 

Stop  Orders. — Definition. — Where  a  party  having  an  interest 
in  a  fund  in  Court  has  assigned  or  charged  such  interest,  the  assignee 


STOP  ORDEES  647 

or  mortgagee  can  obtain  an  order  preventing  the  fund  being  dealt  with 
without  notice  to  himself.  Such  an  order  is  technically  termed  a  stop 
order. 

How  obtained. — An  application  for  a  stop  order  was  formerly  made 
by  petition,  but  for  many  years  past  it  has  been  the  practice  to  apply 
by  summons  at  chambers  (Wrench  v.  Wynne,  1869,  17  W.  R  198; 
Walsh  V.  Wason,  1874,  22  W.  R.  676).  Where,  however,  a  fund  exceed- 
ing £1000  has  been  paid  into  Court  under  the  Trustee  Relief  Acts,  or 
the  Trustee  Act,  1893,  and  it  is  desired  to  place  a  stop  order  on  such 
fund,  then,  unless  there  has  been  some  prior  application  to  the  Court 
with  regard  to  it,  a  petition  is  still  necessary  for  the  purpose  (In  re 
Toogood's  Trusts,  1887,  56  L.  T.  703,  following  In  re  Day's  TriLsts,  1883, 
49  L.  T.  499).  For  forms  of  application,  see  Daniell's  Chancery  Forms, 
p.  840. 

Service. — A  person  presenting  a  petition  or  issuing  a  summons  for  a 
stop  order  is  not  required  to  serve  such  petition  or  summons  upon  the 
parties  to  the  cause  or  upon  the  persons  interested  in  such  parts  of  the 
fund  as  are  not  sought  to  be  affected  by  the  order  (R.  S.  C,  1883, 
Order  46,  r.  13,  taken  from  Order  26,  r.  3,  of  the  Chancery  Consolidated 
Orders). 

Notwithstanding  the  terms  of  the  above  rule,  the  assignor,  even 
though  a  party  to  the  cause,  must  be  served  with  the  summons  or 
petition  (Parsons  v.  Groome,  1842, 4  Beav.  521 ;  49  E.  R.  440).  In  prac- 
tice, however,  the  assignor  very  constantly  is  a  co-applicant.  If  unneces- 
sary parties  are  served,  the  applicant  may  be  ordered  to  pay  their  costs 
(Glazhrook  v.  Gillatt,  1846,  9  Beav.  611;  50  E.  R.  480).  All  persons 
having  already  obtained  stop  orders  on  the  fund  must  be  served  (Hulkes 
V.  Day,  1840,  10  Sim.  41 ;  59  E.  R.  527). 

Evidence. — The  evidence  in  support  of  the  application  should  show 
the  title  of  the  assignor,  though  it  is  not  absolutely  necessary  to  show 
the  particular  share  of  the  fund  to  which  he  is  entitled.  The  assign- 
ment must  also  be  proved,  unless  the  assignor  appears  and  admits  the 
execution  of  it  (Wood  v.  Vincent,  1841,  4  Beav.  419;  49  E.  R.  401; 
Quarman  v.  Williams,  1842,  5  Beav.  133 ;  49  E.  R.  527  ;  59  R.  R.  435). 

Effect  of  Stop  Order. — A  stop  order  does  not  affect  any  right ;  and 
it  is  therefore  unnecessary  to  specify  that  it  is  made  without  prejudice. 
All  that  is  done  is  to  prevent  payment  out  of  Court  without  notice  to 
the  party  (Lucas  v.  Peacock,  1845,  9  Beav.  177;  50  E.  R.  311).  An 
order  has  been  made  even  where  the  title  to  the  fund  was  in  dispute 
(Hawkesley  v.  Go^mn,  1864,  12  W.  R.  1100). 

A  stop  order,  however  general  in  its  terms,  is  confined  in  its  opera- 
tion to  the  specific  portion  of  the  fund  in  respect  of  a  dealing  with 
which  it  is  made  (Macleod  v.  Buchanan,  1864,  4  De  G.,  J.  &  S.  265 ; 
46  E.  R.  921). 

Where  there  are  no  funds  in  Court,  and  no  order  for  bringing  any 
funds  into  Court,  an  application  for  a  stop  order  will  not  be  entertained 
(Wellesley  v.  Morningion,  1862,  11  W.  R.  17).  But  an  order  may  be 
made  in  respect  of  a  specified  amount  not  actually  paid  into  Court, 
but  as  to  which  an  order  has  been  made  that  it  be  paid  in  (Shaw  v. 
Hudson,  1879,  48  L.  J.  Ch.  689). 

It  is  no  longer  necessary,  as  a  preliminary  to  obtaining  a  stop  order 
on  a  fund  in  Court  by  a  person  who  has  a  judgment  in  another  Division 
of  the  High  Court,  that  he  should  obtain  a  charging  order  in  that 
Division  (Hopewell  v.  Barnes,  1876,  1  Ch.  D.  630 ;  Sliaw  v.  Hudson, 
1879,  48  L.  J.  Ch.  689). 


648  STOP  ORDERS 

The  Order. — A  stop  order  ought  to  be  drawn  up  so  as  to  express  in 
distinct  terms  on  its  face  that  it  affects  only  the  share  and  interest  of 
the  party  assigning  {Macleod  v.  Buchanan,  1864,  4  De  G.,  J.  &  S.  265 ; 
46  E.  R.  921).  Having  regard  to  the  practice  in  the  Pay  Office  of  treat- 
ing stop  orders  as  not  affecting  income  except  when  mentioned  on  the 
face  of  the  order,  care  should  be  taken  in  drawing  up  stop  orders  to 
express  on  the  face  of  them  whether  capital  or  income,  or  both,  are  to 
be  restrained  {Mack  v.  Postle,  [1894]  2  Ch.  449). 

After  the  order  has  been  made  it  must  be  lodged  at  the  Pay  Office, 
that  notice  of  it  may  be  placed  on  the  books  of  that  office.  The  Pay- 
master is  bound  to  notify  on  any  certificate  of  fund  issued  by  him  the 
dates  of  any  orders  restraining  the  transfer,  sale,  delivery  out,  or 
payment,  or  other  dealings  with  the  funds  in  Court  to  the  credit  of  the 
account  mentioned  in  each  certificate,  and  whether  such  order  affects 
principal  or  interest,  and  the  names  of  the  persons  to  whom  notice  is  to 
be  given  (Supreme  Court  Funds  Rules,  1905,  r.  99). 

Unless  a  stop  order  has  been  obtained  on  a  fund  in  Court,  the  Pay- 
master is  not  guilty  of  default  under  sec.  5  of  the  Chancery  Funds  Act, 
1872,  35  &  36  Vict.  c.  44,  if  the  fund  be  paid  out  to  the  wrong  person 
{Bath  V.  Bath,  [1901]  1  Ch.  460;  following  Jones  v.  J(mes,  ibid., 
p.  46471.). 

For  Forms  of  Order,  see  Seton,  pp.  491-496. 

Fund  of  Lunatic. — The  Court  will  not  make  an  order  in  the  nature 
of  a  stop  order  on  the  estate  of  a  lunatic  in  favour  of  the  assignee  of  a 
next-of-kin  of  the  lunatic  {In  re   Willdnson,  1874,  L.  R.  10  Ch.  73). 

Priorities. — A  stop  order  has  the  same  effect,  as  to  priorities  between 
competing  incumbrancers,  as  notice  where  a  fund  is  out  of  Court  in  the 
hands  of  trustees.  It  may  be  observed  that  the  Paymaster-General  is 
not  a  trustee  of  the  funds  committed  to  him,  but  merely  the  agent  of 
the  Court.  Trustees  who  have  paid  the  fund  into  Court  are  trustees  of 
it  until  the  Court  has  in  some  way  dealt  with  it,  and  then  the  Court 
becomes  the  trustee.  Notice,  therefore,  to  the  Paymaster-General  of  an 
assignment  of  funds  in  his  hands  is  of  no  avail  against  a  stop  order  after- 
wards obtained  by  a  subsequent  purchaser  without  notice  ( Warhurton 
v.  Hill,  1854,  Kay,  170 ;  69  E.  R.  199). 

Notice  given  to  trustees  of  a  fund  before  it  is  brought  into  Court 
prevails  over  a  stop  order  subsequently  obtained  after  the  fund  is  in 
Court  {Livesey  v.  Harding,  1856,  23  Beav.  141 ;  53  E.  R.  55 ;  Brearcliff 
V.  Dorrington,  1850,  4  De  G.  &  Sm.  122 ;  64  E.  R.  762).  But,  where  the 
fund  is  in  Court,  a  subsequent  incumbrancer  obtaining  a  stop  order 
thereby  obtains  priority  over  an  incumbrancer  earlier  in  date  who  has 
no  stop  order  {Greening  v.  Beckford,  1832,  5  Sim.  195;  58  E.  R.  310; 
Montefiore  v.  Guedalla,  [1903]  2  Ch.  26).  If,  however,  a  second  incum- 
brancer on  a  fund,  at  the  time  of  taking  his  security,  had  notice  of  the 
existence  of  a  prior  incumbrance,  he  cannot,  by  obtaining  a  stop  order, 
gain  priority  over  the  first  incumbrancer  even  though  the  latter  has  not 
obtained  a  stop  order  {In  re  A.  I).  Holmes,  1885,  29  Ch.  D.  786).  But 
an  incumbrancer  who  has  obtained  a  stop  order  on  a  fund  will  not  lose  his 
priority  over  a  prior  incumbrancer  who  has  obtained  no  stop  order,  owing 
to  the  fact  that  he  had  notice  of  the  prior  charge,  if  he  had  no  such 
notice  at  the  time  of  taking  his  security  {Mutual  Life  Assurance  Society  v. 
Langley,  1886,  32  Ch.  D.  460).  As  against  a  stop  order  obtained  by  an 
incumbrancer  on  a  fund  in  Court,  in  an  administration  suit,  and  in 
respect  of  which  orders  have  been  made  directing  payment  of  interest 


STOP  OEDEES  649 

to  the  parties  entitled,  uotice  to  the  trustees,  though  given  by  another 
incumbrancer  before  the  stop  order,  does  not  confer  priority  {Pinnock  v. 
Bailey,  1883,  23  Ch.  D.  49). 

Where  an  assignment  is  made  of  an  interest  in  a  trust  fund,  part  of 
which  is  in  Court  and  part  in  the  hands  of  trustees,  the  assignee,  in  order 
to  complete  his  title,  must,  as  regards  the  fund  in  Court,  obtain  a  stop 
order,  and,  as  regards  the  fund  in  the  hands  of  trustees,  give  notice  to 
them  {Mutual  Life  Assurance  Society  v.  Langley,  1886,  32  Ch.  D.  460). 
A  son  was  entitled  to  a  contingent  interest  in  a  fund  paid  into 
Court  in  an  action  to  administer  the  estate  of  the  testator  under 
which  such  interest  arose,  and  died  having  by  will  bequeathed  a  share 
of  such  interest  to  a  daughter,  who  assigned  the  same  to  A.  and  B. 
successively.  B.,  who  had  no  notice  of  A.'s  assignment,  obtained  a  stop 
order  on  the  fund.  B.  gave  notice  to  the  legal  personal  representative 
of  the  son.  It  was  held  that  for  the  purpose  of  determining  priority 
between  A.  and  B.  the  stop  order  had  the  same  effect  as  notice  to  the 
father's  executors  would  have  had  if  the  fund  had  not  been  in  Court, 
that  the  proper  person  to  receive  notice  was  the  legal  personal  represen- 
tative of  the  son ;  and  that  consequently  A.  had  priority  over  B.  (Stephens 
y. Green;  Green  v.  Knight,  [1895]  2  Ch.  148,  following  ITolt  v.  Dewell, 
1846,  4  Hare,  446 ;  67  E.  E.  723). 

A  receivership  order  obtained  by  a  judgment  creditor  by  way  of 
equitable  execution  over  a  judgment  debtor's  share  of  a  testator's  residuary 
estate,  partly  in  Court  in  an  administration  action  and  partly  in  the  hands 
of  an  executor  who  has  direct  notice  of  the  order,  prevents  any  subsequent 
mortgagee  or  judgment  creditor  from  gaining  priority  by  means  of  a  stop 
order  {In  re  Marquis  of  Anglesey,  Countess  de  Galve  v.  Gardner,  [1903] 
2  Ch.  727). 

A  mortgagee  who  has  obtained  a  stop  order  after  the  bankruptcy  of 
his  mortgagor,  is  entitled  to  priority  over  the  trustee  in  bankruptcy  who 
has  obtained  no  such  stop  order  {Stuart  v.  Cockerell,  1869,  L.  E.  8  Eq. 
607;  Palmer  v.  Locke,  1881,  18  Ch.  D.  381). 

The  carrying  over  of  the  share  of  an  assignor  in  a  fund  to  his  separate 
account  will  not  affect  a  stop  order  obtained  by  an  incumbrancer  before 
such  carrying  over,  nor  will  a  subsequent  incumbrancer  gain  priority  by 
obtaining  a  stop  order  on  the  fund  after  it  has  been  carried  over  {Lister 
V.  Tidd,  1867,  L.  E.  4  Eq.  462).  When  a  fund  is  carried  over  to  a 
particular  separate  account  it  is  released  from  the  general  questions  in 
the  cause,  and  becomes  marked  as  being  subject  only  to  the  questions 
arising  upon  the  particular  matter  referred  to  in  the  heading  of  the 
account  {'per  Lord  Langdale,  In  re  Jervoise,  1849,  12  Beav.  209 ;  50  E.  E. 
1039).  And  a  person  bond  fide  advancing  money  on  the  faith  of  such 
an  order,  and  obtaining  a  stop  order,  has  a  superior  title  to  one  arising 
from  a  liability  of  the  mortgagor  to  the  estate  of  the  testator  in  the 
cause  {In  re  Eyton,  Bartlett  v.  Charles,  1890,  45  Ch.  D.  458). 

It  may  be  mentioned  that,  in  ascertaining  the  effect  of  a  stop  order 
upon  a  fund  in  Court,  the  Court  is  not  bound  to  confine  its  attention 
merely  to  the  language  of  the  order  itself,  but  may  have  recourse  to 
what  appears  from  any  part  of  the  order  {Mack  v.  Postle,  [1894]  2  Ch. 
449). 

Notice  of  Application  to  Deal  with  Fund. — Where  stop  orders  have 
been  placed  on  a  fund,  the  holders  of  such  orders  must  have  notice  of 
any  application  to  deal  with  such  fund.  But  where  a  contingent  interest 
in  a  fund  had  been  mortgaged,  and  the  mortgagees  had  obtained  stop 


650  STOPPAGE  IN  TRANSITU 

orders,  and  subsequently  the  mortgagor  died  before  his  interest  vested, 
it  was  held  that  the  person  ultimately  entitled  to  the  fund  might  apply 
for  payment  out  without  serving  the  mortgagees  (  Vernon  v.  Croji,  1888, 
36  W.  R  778). 

Costs. — By  Order  46,  r.  12,  of  the  Eules  of  the  Supreme  Court,  1883 
(following  Consolidated  Order  26,  r.  1),  it  is  provided  as  follows: — 

Where  any  moneys  or  securities  are  in  Court  to  the  general  credit  of 
any  cause  or  matter,  or  to  the  account  of  any  class  of  persons,  and 
an  order  is  made  to  prevent  the  transfer  or  payment  of  such  moneys 
or  securities,  or  any  part  thereof,  without  notice  to  the  assignee  of 
any  person  entitled  in  expectancy  or  otherwise  to  any  share  or 
portion  of  such  moneys  or  securities,  the  peison  by  whom  any  such 
order  shall  be  obtained  on  the  shares  of  such  moneys  or  securities 
affected  by  such  order  shall  be  liable,  at  the  discretion  of  the  Court 
or  a  judge,  to  pay  any  costs,  charges,  and  expenses  which,  by  reason 
of  any  such  order  having  been  obtained,  shall  be  occasioned  to  any 
party  to  the  cause  or  matter,  or  any  persons  interested  in  any  such 
moneys  or  securities. 

Parties  having  claims  on  funds  in  Court  are  not  entitled,  as  a  general 
rule,  and  under  all  circumstances,  to  the  costs  of  getting  a  stop  order 
(Grimsbi/  v.  Webster,  1860,  8  W.  R.  725).  But  a  mortgagee  is  entitled 
to  the  costs  of  a  stop  order  where  his  mortgage  deed  empowers  him  to 
apply  to  the  Court  for  an  order  {Waddilove  v.  Taylor,  1848,  6  Hare, 
307 ;  67  E.  R  1183 ;  77  R  R  120). 

Discharge  of  Stop  Order. — For  form  of  application  to  discharge,  see 
Daniell's  Chancery  Forms,  p.  843.  For  form  of  Order,  see  Seton, 
pp.  494,  495. 

{^Authorities. — The  Annual  Practice,  notes  to  Order  46,  rr.  12,  13, 
Daniell's  Chancery Fractice,7 th  ed.,  1901, pp.  1382-1387;  Daniell's  Chancery 
Forms,  5th  ed.,  pp.  841-844;  Morgan's  Chancery  Acts  and  Orders,  6th  ed., 
1885,  pp.  461,  462;  Morgan  and  Wurtzburg  on  Costs,  1882,  p.  72; 
Robbins  on  The  Law  of  Mortgages,  1897,  pp.  1276-1282;  Seton's  Judg- 
ments and  Orders,  6th  ed.,  1901,  pp.  491-499.] 

Stoppag'e  in  transitu. — The  right  of  stoppage  in  transitu 
is  the  right  of  an  unpaid  seller,  who  has  parted  with  the  possession  of 
the  goods,  to  resume  the  possession  thereof,  in  the  event  of  the  buyer's 
insolvency  while  they  are  still  in  the  course  of  transit,  notwithstanding 
that  the  property  in  the  goods  may  have  passed  to  the  buyer,  and  to 
retain  them  until  payment  or  tender  of  the  price  (56  &  57  Vict.  c.  71, 
ss.  39  (1),  44).  The  right  exists  only  in  the  event  of  the  buyer's  insol- 
vency ;  and  the  effect  of  exercising  it  is  not  to  rescind  the  contract  of 
sale,  but  merely  to  revive  the  seller's  lien  on  the  goods  {ibid.,  s.  48);  and 
the  right  extends  only  to  the  goods  themselves. 

Thus  if  the  buyer  has  insured  the  goods,  and  recovers  compensation 
under  the  policy  of  insurance  in  respect  of  damage  to  them,  the  seller, 
though  he  may  stop  the  goods  in  transit,  will  have  no  right  to  the 
money  recovered  under  the  policy  {Berndtson  v.  Strong,  1868,  L.  R.  3  Ch. 
588).  The  right  of  stoppage  in  transitu  is  not  defeated  by  a  part-pay- 
ment of  the  price ;  nor  by  the  buyer  having  given  a  bill  of  exchange  or 
other  negotiable  instrument  as  conditional  payment,  if  the  condition  is 
not  fulfilled  by  reason  of  the  dishonour  of  the  instrument  or  otherwise 
(56  &  57  Vict.  c.  71,  s.  38  (1) ;  and  see  Feise  v.  Wray,  1802,  3  East,  93 ; 


STOPPAGE  IN  TRANSITU  651 

6  E.  E.  551 ;  Ex  parte  Watson,  1877,  5  Ch.  D.  35 ;  Edwards  v.  Brewer, 
1837,  2  Mee.  &  W.  375 ;  46  E.  E.  626 ;  M'Bmvall  &  Neilson's  Trustee  v. 
Snowhall  Co.,  1905,  7  F.  35);  and  the  right  extends  to  any  person  in 
the  position  of  a  seller,  as,  for  instance,  an  agent  of  the  seller  to  whom 
the  bill  of  lading  has  been  indorsed,  or  a  consignor  or  agent  who  has 
himself  paid,  or  is  directly  responsible  for,  the  price  {ibid.,  s.  38  (2)).  A 
buyer  is  deemed  to  be  insolvent  who  has  ceased  to  pay  his  debts  in  the 
ordinary  course  of  business,  or  who  cannot  pay  his  debts  as  they  become 
due,  whether  he  has  committed  an  act  of  bankruptcy  or  not  {ibid., 
8.  62  (3)). 

Goods  are  deemed  to  be  in  the  course  of  transit  from  the  time  when 
they  are  delivered  to  a  carrier  or  other  bailee  for  the  purpose  of  trans- 
mission to  the  buyer,  until  the  buyer  or  his  agent  in  that  behalf  takes 
delivery  of  them  from  such  carrier  or  other  bailee  {ibid.,  s.  45  (1) ;  see 
Scott  V.  Pettit,  1803,  3  Bos.  &  Pul.  469;  7  E.  E.  804;  Leeds  v.  Wright, 
1803,  4  Esp.  243;  Ellis  v.  Hunt,  1789,  3  T.  E.  464;  1  E.  E.  743; 
Dodson  V.  Wentworth,  1842,  4  Man.  &  G.  1080 ;  61  E.  E.  764).  The 
transit  is  at  an  end  if  the  buyer  or  his  agent  in  that  behalf  obtains 
delivery  of  the  goods  before  their  arrival  at  the  appointed  destination 
{ibid.,  8.  45  (2);  and  see  Jones  v.  Jones,  1841,  8  Mee.  &  W.  431 ;  58  E.  E. 
765 ;  Cooper  v.  Bell,  1864,  2  H.  &  C.  722 ;  Foster  v.  Framptm,  1826, 
6  Bam.  &  Cress.  107;  30  E.  E.  255);  or  if,  after  the  arrival  of  the 
goods  at  the  appointed  destination,  the  carrier  or  other  bailee  acknow- 
ledges to  the  buyer  or  his  agent  that  he  holds  the  goods  on  his  behalf 
and  continues  in  possession  of  them  as  bailee  for  the  buyer,  or  his 
agent,  and  it  is  immaterial  that  a  further  destination  for  the  goods  may 
have  been  indicated  by  the  buyer  {ibid.,  s.  45  (3);  Allan  v.  Gripper, 
1832,  2  Cromp.  &  J.  218;  37  E.  E.  682;  Fooleij  v.  Great  Eastern  Rly. 
Co.,  1876,  34  L.  T.  537;  Tucker  v.  Humphraj,  1828,  4  Bing.  516; 
Richardson  v.  Goss,  1802,  3  Bos.  &  Pul.  119;  6  E.  E.  727;  Sioanwick  v. 
Sothem,  1839,  1  Per.  &  Dav.  648;  48  E.  E.  740;  Ex  parte  Catling,  1869, 
29  L.  T.  431 ;  Ex  parte  Gonda,  1872,  20  W.  E.  981 ;  Taijlor  v.  G.  E.  Big. 
Co.,  [1901]  1  K.  B.  774).  Where  the  goods  are  consigned  to  forwarding 
agents,  who  receive  their  instructions  as  to  the  ulterior  destination 
direct  from  the  buyer,  the  transit  is  complete,  so  far  as  the  seller  is 
concerned,  as  soon  as  the  goods  have  been  delivered  to  the  forwarding 
agents  {Dixon  v.  Baldwen,  1805,  5  East,  175 ;  7  E.  E.  681 ;  Kendall  v. 
Marshall,  1883,  11  Q.  B.  D.  356 ;  Ex  parte  Miles,  1885,  15  Q.  B.  D.  39 ; 
cp.  Ex  parte  Bairow,  1881,  6  Ch.  D.  783 ;  Jobson  v.  Eppenheim,  1905, 
21  T.  L.  E.  468).  So,  if  the  goods  are  delivered  at  a  railway  station,  or 
at  a  wharf  or  dock,  to  the  order  of  the  buyer,  who  himself  gives  the 
railway  company,  wharfinger,  or  dock  company  instructions  as  to  their 
disposal,  the  right  of  stoppage  in  transitu  ceases  upon  delivery  at  the 
station,  wharf,  or  dock,  though  the  goods  may  be  carried  to  some  further 
destination  {In  re  Gurney,  1893,  67  L.  T.  598 ;  Ex  parte  Francis,  1887, 
56  L.  T.  577 ;  In  re  Whitworth,  1875,  1  Ch.  D.  101 ;  Noble  v.  Adams, 
1816,  7  Taun.  59 ;  17  E.  E.  445).  But  if  the  seller  gives  instructions 
to  the  carrier  as  to  the  ultimate  destination  of  the  goods,  the  transit, 
generally  speaking,  is  deemed  to  continue  until  such  ultimate  destina- 
tion is  reached,  and  delivery  taken  by  the  consignee  or  his  agents 
{Bethell  v.  Clark,  1888,  20  Q.  B.  D.  615 ;  Lyons  v.  Hoffnung,  1890,  15 
App.  Cas.  391 ;  M'Dowall  &  Neilson's  Trustee  v.  Snowball  Co.,  1905,  7  F. 
35).  Where  the  goods  are  rejected  by  the  buyer,  and  the  carrier  or 
other  bailee  remains  in  possession  of  them,  the  transit  is  not  deemed  to 


652  STOPPAGE  IN  TRANSITU 

be  at  an  end,  even  if  the  seller  has  refused  to  receive  them  back  (56  & 
57  Vict.  c.  71,  s.  45  (4)). 

When  goods  are  delivered  to  a  ship  chartered  by  the  buyer,  it  is  a 
question  depending  on  the  circumstances  of  the  particular  case,  whether 
they  are  in  the  possession  of  the  master  as  a  carrier,  or  as  agent  of  the 
buyer  {ibid.,  s.  45  (5) ;  see  Bothlingk  v.  Inglis,  1803,  3  East,  381 ;  7  R.  R. 
490;  Ex  parte  Rosevear  China  Clay  Co.,  1879,  11  Ch.  D.  560;  Schotoman 
V.  Loiidon  and  York  Bly.  Co.,  1867,  L.  R.  2  Ch.  332 ;  Berndtson  v.  Strong, 
1868,  L.  R.  3  Ch.  588;  Thompson  v.  TraU,  1828,  2  Car.  &  P.  334;  30 
R.  R.  242;  Brindley  v.  Cilgvnjn,  1885,  55  L.  J.  Q.  B.  67;  Merchant 
Banking  Co.  v.  Phoenix  Bessemer  Steel  Co.,  1877,  5  Ch.  D.  205). 

Where  part  delivery  of  the  goods  has  been  made  to  the  buyer,  or 
his  agent  in  that  behalf,  the  remainder  of  the  goods  may  be  stopped  in 
transitu,  unless  such  part  delivery  has  been  made  under  such  circum- 
stances as  to  show  an  agreement  to  deliver  up  the  whole  of  the  goods 
(ibid.,  s.  45  (7);  Ex  parte  Cooper,  1879,  11  Ch.  D.  68 ;  Tanner  v.  Scovell, 
1845,  14  Mee.  &  W.  28 ;  69  R.  R.  644;  Belts  v.  Gibbim,  1834,  4  Nev.  & 
M.  K.  B.  64;  41  R.  R.  381 ;  Shnbey  v.  Heyward,  1795,  2  Black.  H.  504). 
If  the  carrier  or  other  bailee  wrongfully  refuses  to  deliver  the  goods  to 
the  buyer,  or  his  agent  in  that  behalf,  the  transit  is  deemed  to  be  at  an 
end  {ibid.,  s.  45  (6)). 

When  the  transit  is  once  at  an  end,  the  right  of  stoppage  in  transitu 
ceases,  and  is  not  revived  because  the  goods  again  happen  to  come  into 
the  possession  of  the  seller  {Valpy  v.  Gibson,  1847,  16  L,  J.  C.  P.  241). 

The  right  of  stoppage  in  transitu  is  not  affected  by  the  consignee 
reselling  the  goods,  unless  he  transfers  a  document  of  title  to  the  pur- 
chaser, even  if  the  bill  of  lading  for  the  goods  is  in  the  hands  of  the 
consignee,  and  makes  the  goods  deliverable  to  his  order  {ibid.,  s.  47; 
Ex  parte  Golding,  1880,  13  Ch.  D.  628 ;  Craven  v.  R^Jder,  1815,  6  Taun. 
433 ;  16  R.  R.  644 ;  Kemp  v.  Falk,  1882,  7  App.  Cas.  573) ;  but  if  the 
consignee  transfers  the  bill  of  lading  for  valuable  consideration  to  a 
person  who  takes  it  in  good  faith,  such  transfer  defeats  the  right  of 
stoppage  in  transitu  to  the  extent  of  the  rights  of  the  transferee,  whether 
the  bill  of  lading  is  indorsed  specially  to  him  or  is  indorsed  in  blank ; 
and  a  past  consideration  is  sufficient  for  this  purpose  {Lickbarrow  v. 
Mason,  1787,  2  T.  R.  63 ;  1  R.  R.  425 ;  Leask  v.  Scott,  1877,  2  Q.  B.  D. 
376;  Cahn  v.  Pockctt's,  etc.,  Co.,  [1899]  1  Q.  B.  643).  And  it  is  pro- 
vided by  the  10th  section  of  the  Factors  Act,  1889,  that  where  a  docu- 
ment of  title  to  goods  has  been  lawfully  transferred  to  a  person  as  a 
buyer  or  owner  of  the  goods,  and  that  person  transfers  the  document  to 
a  person  who  takes  the  document  in  good  faith  and  for  valuable  con- 
sideration, the  last-mentioned  transfer  shall  have  the  same  effect  for 
defeating  any  vendor's  lien  or  right  of  stoppage  in  transitu  as  the  trans- 
fer of  a  bill  of  lading  has  for  defeating  the  right  of  stoppage  in  transitu. 
The  expression  "  document  of  title  "  includes  any  dock  warrant,  ware- 
house-keeper's certificate,  and  warrant  or  order  for  the  delivery  of 
goods,  and  any  other  document  used  in  the  ordinary  course  of  business 
as  proof  of  the  possession  and  control  of  goods,  or  authorising  or  pur- 
porting to  authorise,  either  by  indorsement  or  by  delivery,  the  possessor 
of  the  document  to  transfer  or  receive  goods  thereby  represented  (52  & 
53  Vict.  c.  45,  s.  1  (4)).  The  transfer  of  a  bill  of  lading  or  other  docu- 
ment of  title,  however,  only  defeats  the  right  of  stoppage  in  transitu  to 
the  extent  of  the  transferee's  claim  (56  &  57  Vict.  c.  71,  s.  47 ;  Spalding 
V.  Ruding,  1843,  6  Beav.  376  ;  63  R.  R.  120 ;  Kemp  v.  Falk,  1882,  7  App. 
Cas.  573). 


STEAITS  SETTLEMENTS  653 

The  right  of  stoppage  in  transitu  may  be  exercised  either  by  taking 
actual  possession  of  the  goods  or  by  giving  notice  to  the  carrier  or  other 
bailee  in  whose  possession  the  goods  are.  Such  notice  may  be  given 
either  to  the  person  in  actual  possession  of  the  goods  or  to  his  principal. 
In  the  latter  case  the  notice,  to  be  effectual,  must  be  given  at  such 
time  and  under  such  circumstances  that  the  principal,  by  the  exercise 
of  reasonable  diligence,  may  communicate  it  to  his  servant  or  agent  in 
time  to  prevent  a  delivery  to  the  buyer  (56  &  57  Vict.  c.  71,  s.  46  (1)). 
The  notice  must  be  a  distinct  notice  of  an  intention  to  resume 
possession  of  the  goods.  In  Phelps  v.  Comber,  1885,  29  Ch.  D.  813, 
it  was  held  that  a  mere  direction  to  hold  the  goods  to  the  order  of 
the  vendor  was  insufficient.  If,  after  receiving  a  proper  notice,  the 
carrier  or  bailee,  by  mistake  or  otherwise,  delivers  the  goods  to  the 
buyer,  the  carrier  or  bailee  is  liable  to  the  seller  for  their  value  {Litt  v. 
Cowley,  1816,  7  Taun.  169  ;  17  R.  R.  482). 

Stowage— See  Cargo. 

Strait. — This  term  is  usually  applied  to  any  narrow  pass  or 
passage-way  between  two  large  bodies  of  water;  but  occasionally  an 
isthmus  or  strip  of  land  separating  two  seas  or  lakes  has  been  so  denoted. 
In  regard  to  the  latter  kind  of  straits  there  is  no  particular  legal  diffi- 
culty, but  water  channels  of  the  former  kind  have  given  rise  to  much 
discussion,  particularly  in  international  law.  As  instances  may  be  cited 
the  cases  of  the  Dardanelles  and  of  the  outlets  from  the  Baltic.  The 
extent  of  any  nation's  jurisdiction  over  such  channels  must  ultimately 
depend  upon  its  military  and  naval  power,  and  at  all  events  upon  con- 
vention express  or  implied.  Thus  with  regard  to  the  maritime  supre- 
macy claimed  by  Great  Britain  over  what  are  called  the  Narrow  Seas, 
that  has  seldom  amounted  to  more  than  a  demand  that  certain  honours 
should  be  paid  to  the  British  flag,  which  have  or  have  not  been  rendered 
by  other  nations  according  to  circumstances.  Generally  speaking,  how- 
ever, if  the  navigation  of  two  pieces  of  water  connected  by  a  strait  is  free, 
the  navigation  of  the  strait  ought  also  to  be  free. 

Apart  from  any  question  of  international  law,  there  is  now  in  all 
English  Courts  a  real  jurisdiction  up  to  three  miles  from  the  English 
shores  (see  the  Territorial  Waters  Jurisdiction  Act,  1878,  41  &  42  Vict. 
c.  73).  Beyond  that  limit  any  jurisdiction  exercisable  over  the  naviga- 
tion, fisheries,  etc.,  in  straits  is  in  the  Admiralty  Division  of  the  High 
Court  of  Justice  {R.  v.  Keyn,  1876,  2  Ex.  D.  63).  As  to  the  soil  of 
straits,  the  Crown  claims  that  to  the  extent  of  three  miles  from  the 
beach,  though  the  right  of  the  Crown  may  be  defeated  by  showing 
some  transference  thereof  to  a  private  individual  {Free  Fishers  of  Whit- 
stable  V.  Gann,  1861-64,  11  C.  B.  N.  S.  387;  13  C.  B.  N.  S.  853;  11 
H.  L.  192). 

[See  Wheaton,  Elements  of  International  Law,  4th  Eng.  ed.,  1904 
8.  181,  p.  283.] 

Straits  Settlements.  — ^rm.— The  Straits  Settlements 
are  a  Crown  colony  which  comprises  Malacca,  Singapore  (including  the 
Keeling  Islands,  and  Christmas  Island),  Penang  (including  Province 
Wellesley,  and  the  Dindings),  in  the  Malay  Peninsula  and  Labuan,  an 
island  off'  the  coast  of  Borneo.  The  total  area  of  the  colony  is  about 
1600  square  miles,  or  as  large  as  the  county  of  Somerset.     The  three 


654  STRAITS  SETTLEMENTS 

Malay  Settlements  are  isolated  by  the  Malay  Fedekated  States  (q.v.) 
which  are  a  British  Protectorate  (see  article  Pkotectokate),  and  by  the 
independent  State  of  Johore,  the  foreign  relations  of  which  are  under 
Treaty  of  December  11,  1885  (Pari.  Paper,  1885,  c.  4627)  controlled  by 
Great  Britain  (see  Mighele  y.  Sultan  of  Johore,  [1894]  1  Q.  B.  149). 

Earlier  History. — Malacca,  an  early  independent  Malay  State,  passed 
through  Portuguese  and  Dutch  hands  before  it  was  finally  ceded  to 
Great  Britain  in  1824,  in  exchange  for  Bencoolen  in  Sumatra. 

Penang  was  ceded  to  the  British  by  the  Rajah  of  Kedah  in  1785, 
and  fifteen  years  later  Province  Wellesley  was  obtained  from  the  Rajah. 
In  1805  Penang  was  constituted  a  separate  Presidency  under  the  East 
India  Company.  In  1826  Singapore  and  Malacca  were,  under  6  Geo.  iv. 
c.  85,  incorporated  with  Penang  as  one  settlement,  the  seat  of  Govern- 
ment being  at  Penang  till  1836,  when  it  was  removed  to  Singapore  (see 
below).  By  the  Treaty  of  Pangkor  in  1874  an  earlier  cession  in  1826 
of  the  island  of  Pangkor  and  the  Sembilan  Islands  was  confirmed,  and 
further  cession  was  made  of  a  strip  of  the  mainland,  the  whole  of  which 
combined  is  now  called  the  Dindings  Territory.  For  some  time  Penang 
was  styled  "  Prince  of  Wales's  Island." 

Singapore,  an  important  trading  centre  during  the  12th  and  13th 
centuries,  was  taken  possession  of  by  Sir  Stamford  Raffles  in  1819  in 
accordance  with  a  treaty  with  the  princes  of  Johore.  At  first  made 
subordinate  to  Bencoolen  in  Sumatra,  it  passed,  on  the  transfer  of 
Sumatra  to  the  Netherlands  (see  5  Geo.  iv.  c.  108)  in  1824,  to  the 
Government  of  Bengal,  and  was  in  1826  incorporated  with  Malacca 
and  Penang  as  stated  above.  The  Straits  Settlements  as  thus  formed 
were,  as  being  part  of  India,  vested  in  the  Crown  by  the  Government  of 
India  Act,  1858,  21  &  22  Vict.  c.  106,  and  remained  part  of  India  until 
constituted  a  colony  (see  under  Constitution  below).  The  last  tie  to 
India  (i.e.  to  the  diocese  of  Calcutta)  was  severed  by  32  &  33  Vict.  c.  88. 
The  Keeling  or  Cocos  Islands,  taken  possession  of  by  Great  Britain  in 
1857,  were  placed  under  the  Government  of  Ceylon  in  1878.  By  Letters 
Patent  of  February  1,  1886  (St.  R.  &  0.,  Rev.  1904,  vol.  xi.,  "Straits 
Settlements,"  p.  2),  they  were  brought  under  the  Government  of  the 
Straits  Settlements,  and  by  Letters  Patent  of  May  20, 1903  (ibid.,  p.  11), 
were  annexed  to  Singapore.  Christmas  Island,  annexed  in  1888,  was 
placed  under  the  administration  of  the  Governor  of  the  Straits  Settle- 
ments by  Letters  Patent  of  January  8,  1889  {ibid.,  p.  4),  and  formally 
annexed  to  Singapore  as  from  June  10,  1900. 

Labuxin,  an  island  on  the  north-west  coast  of  Borneo,  was  ceded  by 
the  Sultan  of  Borneo  to  Great  Britain  in  1846.  For  the  next  sixty 
years  it  was  a  separate  colony  with  a  Governor  who,  under  Letters 
Patent  of  November  6,  1889  {ibid.,  vol.  vi.  "  Labuan,"  p.  1),  legislated  by 
proclamation.  Under  agreement  from  1889  the  Governor  of  British 
North  Borneo  {q.v.)  was  Governor  of  Labuan,  until  January  1,  1906, 
when  he  was  succeeded  by  the  Governor  of  the  Straits  Settlements. 
The  Straits  Settlements  Act,  1866,  contemplated  that  it  might  in  the 
future  be  expedient  to  include  Labuan  in  the  Settlements,  and  by 
Letters  Patent  of  October  30,  1906  (St.  R.  &  0.,  1906,  p.  890),  the 
boundaries  of  the  Straits  Settlements  were  extended  in  accordance  with 
the  Colonial  Boundaries  Act,  1895,  58  &  59  Vict.  c.  34,  so  as  to  include 
Labuan  as  from  January  1,  1907,  and  the  1889  Letters  Patent  were 
revoked  (see  also  Straits  Settlements  Ordinance,  No.  1  of  1907). 

Constitution. — The  Straits  Settlements  were  severed  from  India  and 


STEAITS  SETTLEMENTS  655 

constituted  a  colony  as  from  April  1,  1867,  by  Order  in  Council  of 
December  28,  1866  (St.  K.  &  0.,  Eev.  1904,  vol.  xL,  "  Straits  Settle- 
ments," p.  1),  under  the  Straits  Settlements  Act,  1866,  29  &  30  Vict, 
c.  115.  The  present  Constitution  was  established  by  Letters  Patent  of 
December  30,  1891  {ibid.,  p.  6),  under  which  the  colony  is  administered 
by  a  Governor,  assisted  by  an  Executive  and  Legislative  Council.  The 
Legislative  Council  consists  of  sixteen  members,  of  whom  nine  are 
official,  and  seven  unofficial,  and  of  these  latter  members  two  are 
nominated  by  the  Chambers  of  Commerce  of  Singapore  and  Penang. 
The  Governor  has  the  usual  powers  of  pardon  and  appointment  of  judges 
and  officials  (see  article  Colony),  and  is  also  High  Commissioner  of  the 
Federated  Malay  States  {q.v.),  and  of  Brunei  (see  North  Borneo). 

Laws. — The  common  and  statute  law  of  England  as  it  existed  on  the 
issue  of  the  Charter  of  1826  is  in  force  in  the  colony,  but  only  so  far  as 
it  is  of  general  policy  and  adapted  to  local  wants,  and  in  its  application 
to  alien  races  subject  to  modifications  mitigating  injustice  ( Yeap  Cheah 
Neo  V.  Ong  Cheng  Neo,  1875,  L.  R.  6  P.  C.  381>  The  statute  law  of 
the  colony  consists  of  local  Ordinances  and  of  such  (see  Ordinance 
No.  4  of  1871)  English  and  Indian  Acts  and  Orders  in  Council  as  are 
applicable  to  the  colony.  By  Ordinance  No.  1  of  1907,  the  laws  of  the 
Settlements  are  in  force  in  Labuan  subject  to  certain  specified  (Sched.  I.) 
Labuan  Ordinances  still  operating,  and  to  certain  specified  (Sched.  II.) 
Straits  Settlements  Ordinances  not  operating  there.  The  Indian  Penal 
Code,  with  slight  alterations,  has  been  adopted.  The  Criminal  Procedure 
Code,  1900  (No.  21  of  1900),  is  based  on  the  Indian  Code  and  was 
amended  by  No.  32  of  1907.  The  Civil  Procedure  Code,  1907  (Ordinance 
No.  31  of  1907),  consolidated  the  law  as  to  civil  procedure  which  is 
based  on  the  English  Judicature  Acts.  A  collective  edition  of  Acts  and 
Ordinances  from  April  1, 1867,  to  March  7,  1898,  was  published  in  1898 
in  2  volumes.  In  1899  a  collection  of  the  India  Acts  in  force  in  the 
colony,  i.e.  Acts  prior  to  1867,  were  published  by  the  Government,  and 
made  conclusive  by  Ordinance  No.  8  of  1889,  but  a  large  portion  of 
this  collection  was  repealed  by  the  Repeal  Ordinance,  1907  (No.  33  of 
1907).  There  is  a  (No.  8  of  1889)  Chronological  Table  and  Index  (on 
the  basis  of  the  home  Index)  to  the  Acts  and  Ordinances  in  force  in  the 
colony  to  the  end  of  1892,  and  periodical  volumes  of  Ordinances  are 
published  every  year  accompanied  by  an  index  and  table  of  contents. 
An  interesting  article  in  the  Journal  of  Comparative  Legislation,  vol.  iv. 
(N.  S.),  p.  82,  deals  with  "  Land  Transfer  in  Malacca." 

Courts  of  Law. — Previous  to  the  union  of  the  Settlements  in  1826 
(see  above)  Singapore  and  Malacca  were  within  the  jurisdiction  of  the 
Supreme  Court  of  Bengal,  but  Penang  possessed  a  Court  of  its  own 
under  a  Charter  of  Justice  of  March  25,  1807.  On  the  union  of  1826 
a  "  Court  of  Judicature  for  Prince  of  Wales's  Island,  Singapore,  and 
Malacca "  was,  under  6  Geo.  iv.  c.  85,  s.  19,  established  by  Charter  of 
Justice  of  November  27,  1826,  and  the  Charter  of  1807  revoked,  and 
under  the  powers  of  6  &  7  Will.  iv.  c.  53,  Admiralty  jurisdiction  was 
granted  to  the  Court.  These  provisions,  as  further  modified  by  Letters 
Patent  of  August  10,  1855  (which  set  up  a  separate  Court  for  Penang, 
see  Straits  Settlements  Ordinances,  vol.  i.,  pp.  1-34),  by  Imperial  Act, 
18  &  19  Vict.  c.  93,  and  by  Orders  in  Council  of  March  4  and  March  19, 
1867,  as  to  the  Admiralty  Court,  were  consolidated  by  Ordinance,  No.  5 
of  1868  (see  Yeap  Cheah  Neos  Case  above),  Labuan  possessed  a  general 
Court  under  Labuan  Ordinances,  No.  2  of  1852,  No.  3  of  1865,  and  No. 


656  STEAITS  SETTLEMENTS 

5  of  1894.  The  Supreme  Court  of  the  Straits  Settlements  is  now  regu- 
lated by  Ordinance  No.  30  of  1907,  which  re-enacts,  with  amendments, 
No.  3  of  1878 ;  Ordinance  No.  3  of  1878,  as  amended  by  No.  15  of  1885, 
and  by  No.  1  of  1907  (which  extends  the  jurisdiction  to  Labuan),  and 
is  constituted  by  a  Chief  Justice  and  three  Puisne  Judges,  and  has 
original  civil  and  criminal  as  well  as  appellate  jurisdiction. 

Appeals  from  the  Supreme  Court  of  the  Straits  Settlements  lie  to 
His  Majesty  in  Council,  and  are  regulated  by  the  Civil  Appeals  Ordinance, 
1893,  No.  2  of  1893,  Part  IV.  Assizes  are  held  every  two  months  at 
Singapore  and  Penang,  and  quarterly  at  Malacca,  and  civil  sittings 
monthly  at  Singapore  and  Penang,  and  quarterly  at  Malacca.  By 
37  &  38  Vict.  c.  38,  the  jurisdiction  of  the  Courts  of  the  Straits 
Settlements  was  extended  to  certain  crimes  committed  outside  the 
colony  in  the  Malayan  Peninsula  or  adjacent  islands.  The  Supreme 
Court  has  also  original  civil  and  criminal  jurisdiction  in  Brunei  at  the 
request  of,  or  in  case  of  the  death,  absence,  or  incapacity  of  the  Eesident 
(Brunei  Order  in  Council,  1901,  Art.  14  (St.  R.  &  0.,  Rev.  1904,  vol.  v., 
"  Foreign  Jurisdiction,"  p.  189 ;  St.  R.  &  0.,  1906,  p.  225)),  and  juris- 
diction under  sec.  6  of  the  Foreign  Jurisdiction  Act,  1890,  to  try  persons 
sent  to  the  Settlements  from  Brunei  (1901  Order,  ihid.),  or  from  Siam 
(Art.  41  of  Siam  Order  in  Council,  1906;  St.  R.  &  0.,  1906,  p.  240). 

Appeals  lie  to  the  Supreme  Court  from  His  Majesty's  Court  for 
Brunei,  and  therefrom  to  His  Majesty  in  Council  (St.  R.  &  0.,  Rev. 
1904,  vol.  v.,  "Foreign  Jurisdiction,"  p.  189,  at  pp.  206-209).  The 
Inferior  Courts  comprise  the  District,  Police,  and  Coroners  Courts  at 
each  of  the  Settlements  (Ordinance  No.  3  of  1907,  Art.  2). 

Currency. — The  Straits  Settlement  (Coinage)  Order,  1895  (printed 
as  amended  in  1898  (St.  R.  &  0.,  Rev.  1904,  vol.  ii.,  "  Coin,  Colonies," 
p.  57)),  repealed  all  previous  laws  regulating  legal  tender  in  the  colony. 
The  1895  Order  was  amended  in  1898  {ihid.),  by  a  1903  Order  {iUd., 
p.  61),  by  an  Order  of  1906  (St.  R.  &  0.,  1906,  p.  46),  and  by  an  Order 
of  1907  (St.  R.  &  0.,  1907,  p.  43).  By  proclamation  of  the  Governor 
under  the  1903  Order  the  Straits  Settlement  dollar  (coined  in  India) 
became  from  October  5,  1903,  the  standard  coin  of  the  colony;  the 
weight,  etc.,  of  the  coin  is  prescribed  by  the  1907  Order.  Straits 
Settlements  fifty-cent,  pieces  (see  the  Orders)  are  legal  tender  to 
any  amount,  and  there  are  also  subsidiary  coins — "cent,  pieces."  The 
Imperial  sovereign  is  also  tender  at  the  rate  of  £7  for  $60.  There  is 
also  a  paper  currency  under  the  Currency  Note  Ordinance  (No.  4  of 
1899,  as  subsequently  amended  by  Nos.  1  and  5  of  1906). 

Application  of  Imperial  Acts. — The  Colonial  Extradition  Ordinance, 
1877  (No.  4  of  1877),  by  Order  in  Council  (St.  R.  &  0.,  Rev.  1904,  vol.  v., 
"  Fugitive  Criminal,"  p.  317)  has  been  incorporated  with  the  Imperial 
Extradition  Acts,  and  for  the  purpose  of  intercolonial  backing  of  extra- 
dition warrants  the  Straits  Settlements  have  been  grouped  with  His 
Majesty's  East  Indian  Territories,  Ceylon,  and  Hong  Kong  {ibid., 
pp.  326,  327).  By  Order  in  Council  of  August  19,  1889,  as  amended 
by  Order  in  Council  of  September  26,  1901  (printed  as  so  amended, 
ihid.,  \o\. -si\.,  "Straits  Settlements,"  p.  12),  provision  was  made  as  to 
extradition  from  the  Straits  Settlements  to  foreign  countries  to  which 
the  Imperial  Acts  do  not  apply,  and  by  Order  in  Council  of  July  15, 
1904  (St.  R.  &  0.,  1904,  p.  643),  the  Orders  of  1889  and  1901  were 
revoked  as  regards  the  Federated  Malay  States,  and  other  provisions 
were  made  for  the  return  from  the  Straits  Settlements  of  persons 
accused  or  convicted  in  those  States. 


STRANDING,  SUNK  OE  BURNT  657 

Probates  granted  in  the  Straits  Settlements  are  recognised  by  the 
Home  Courts,  the  Colonial  Probates  Act,  1892,  having  been  applied  by 
Order  in  Council  to  the  Straits  Settlements  (St.  R.  &  0.,  Rev.  1904, 
vol.  i.,  "  Administration,"  p.  2).  Sec.  20  of  the  Finance  Act,  1894,  has 
been  similarly  applied  {ibid.,  vol.  v.,  "  Death  Duties,"  p.  4),  with  the 
result  that  property  paying  death  duties  in  the  colony  is  exempted 
from  payment  over  again. 

As  to  ships  and  shipping,  certificates  of  competency  granted  to 
masters,  mates,  and  engineers  by  the  Governor  or  other  proper  autho- 
rity of  the  Straits  Settlements  are,  under  an  Order  in  Council  of  May 
9,  1891  {ibid.,  vol.  viii.,  "  Merchant  Shipping,"  p.  46),  as  amended  by 
Order  in  Council  of  October  22,  1906  (St.  R.  &  0.,  1906,  p.  397), 
equivalent  to  those  granted  by  the  Imperial  Board  of  Trade.  Load- 
lines  fixed  and  marked,  and  certificates  given  in  the  colony,  in  pursu- 
ance of  Ordinances  Nos.  2  of  1882,  10  of  1887,  and  13  of  1892,  have 
under  Order  in  Council  (St.  R.  &  0.,  Rev.  1904,  vol.  viii.,  "  Merchant 
Shipping,"  p.  228),  the  same  effect  with  regard  to  ships  registered  in  the 
colony  as  if  they  were  fixed,  marked,  or  given  under  the  Imperial  Act. 
By  Order  in  Council  {ibid.,  p.  40),  the  Master  Attendant  at  Singapore, 
and  the  harbour  masters  at  Penang  and  Malacca  have  been  constituted 
registrars  of  British  ships  in  the  Straits  Settlements. 

By  Order  in  Council  of  November  4,  1901  {ibid.,  vol.  xi.,  "  Solicitor, 
Colonies,"  p.  40),  the  Colonial  Solicitors  Act,  1900,  has  been  applied 
to  the  Straits  Settlements;  accordingly,  men  who  are  advocates  and 
solicitors  of  the  Supreme  Court  of  the  colony  can  be  admitted  to  be 
solicitors  in  England  or  Ireland,  or  law-agents  in  Scotland,  in  accordance 
with  the  conditions  imposed  by  the  Order.  Under  a  Treasury  Deter- 
mination {ibid.,  vol.  ix.,  "Pension,"  p.  21)  the  revenues  of  the  colony  are 
available  for  superannuation  purposes. 

{^Authorities. — Colonial  Office  List ;  Straits  Settlement  Ordinances  ; 
Journal  of  Comparative  Legislation,  vol.  i.  p.  184.] 

Stranding^,  Sunk  or  Burnt.— To  constitute  a  "strand- 
ing," as  this  term  is  used  in  a  marine  policy,  a  ship  must  have  struck 
and  remained  stationary.  "  It  is  not  merely  touching  the  ground  that 
constitutes  a  stranding.  If  a  ship  touches  and  runs,  the  circumstance 
is  not  to  be  regarded.  There  she  is  never  in  a  quiescent  state.  But  if 
she  is  forced  ashore,  or  is  driven  on  a  bank,  and  remains  for  any  time 
upon  the  ground,  this  is  a  stranding,  without  reference  to  the  degree 
of  damage  she  thereby  sustains"  {per  Lord  Ellenborough,  C.J.,  in 
Harman  v.  Vaux,  1813,  3  Camp.  429;  14  R.  R.  773;  and  see  McDougle 
v.  R(yy.  Ex.  Ass.  Co.,  1816,  4  M.  &  S.  503  ;  16  R.  R.  532).  But  where  a 
ship  takes  the  ground  on  the  falling  of  the  tide  in  a  tidal  harbour,  in 
a  spot  where  she  is  properly  placed  for  the  purpose  of  unloading,  and 
is  damaged  in  consequence,  this  does  not  constitute  a  "  stranding  "^ 
{Magnus  v.  Buttemer,  1852,  11  C.  B.  876).  It  is  otherwise,  however,, 
where  a  ship  takes  the  ground  under  circumstances  not  in  the  usual 
course  of  navigation,  as  where  a  vessel  while  under  the  charge  of  a 
pilot  was  improperly  fastened  to  a  pier  or  dock  basin  by  a  rope  to  the 
shore  and  left  there,  in  consequence  of  which  she  took  the  ground 
when  the  tide  left  her,  fell  over  on  her  side,  and  bilged  {Carruthers  v, 
Sydebotham,  1815,  4  M.  &  S.  77;  16  R.  R.  392;  see  the  cases  on  this 
subject  collected  in  Maude  and  Pollock,  Merchant  Shipping,  4th  ed., 
vol.  i.  496,  497).  And  see  Marine  Insurance,  Vol.  VIII.  655. 
VOL.  XIII.  42 


658  STRANGERS  IN  BLOOD 

The  words  "  sunk  or  burnt "  are  frequently  added,  the  meaning  of 
which  appears  to  require  that  the  ship  should  be  thereby  made  tempor- 
arily unnavigable  (Barnes,  J.,  The  Glenlivet,  [1893]  P.  164  ;  and  Bryantv. 
London  Ass.  Co.,  1886,  2  T.  L.  R.  591).  See  Arnould,  Marine  Insuranxie, 
7th  ed.,  1901,  vol.  ii.  ss.  882,  891 ;  and  Carver,  Carriage  hy  Sea,  4th  ed., 
1905,  ss.  85,  87,  and  387-389,  397-401  for  general  average,  and  see 
Average. 

Strangers  in  Blood. — Children  bom  out  of  wedlock,  but 
legitimated  by  virtue  of  a  foreign  law  by  the  subsequent  marriage  of 
their  parents,  take  legacies  and  devises  of  land  as  "  children,"  and  not 
as  "  strangers  in  blood  "  to  their  parents,  and  pay  legacy  and  succession 
duty  accordingly  (see  In  re  Grey's  Trust,  Grey  v.  Stamford,  [1892]  3  Ch. 
88,  and  cases  there  cited ;  Hanson,  Death  Duties,  5th  ed.,  562).  It  is 
otherwise,  however,  where  children  illegitimate  by  English  law  do  not 
acquire  the  full  status  of  lawful  children  by  the  foreign  law  (Atkinson 
V.  Anderson,  1882,  21  Ch.  D.  100). 

Strea.ni. — A  "  stream,"  in  its  primary  and  natural  sense,  denotes 
a  body  of  water  having  a  continuous  flow  in  one  direction ;  but  water 
not  flowing  onwards  with  any  continuity  of  parts,  but  percolating 
through  or  along  the  earth's  strata  until  it  issues  from  them  at  a  lower 
level,  cannot  properly  be  described  as  a  stream  {per  Lord  Watson  in 
M'Nal  V.  Rohertsmi,  [1897]  A.  C.  134). 

In  sec.  27  of  the  Salmon  Fishery  Act,  1861,  the  word  "  stream " 
is  used  as  synonymous  with  "  river  "  {Rolle  v.  Whyte,  1868,  L.  R.  3  Q.  B. 
305). 

Street. — Definition. — The  ordinary  meaning  of  this  word  is  "a 
place  with  continuous  houses  on  each  side"  {per  Blackburn,  J.,  in 
Pound  V.  Plumstead  Board  of  Works,  1871,  L.  R.  7  Q.  B.  194),  or  "  a 
roadway  with  buildings  on  each  side,  more  or  less  continuous  "  {per 
Lord  Selborne,  L.C.,  in  Bobinson  v.  Barton  Board,  1883,  8  App.  Cas. 
801).  Statutory  definitions  have  not  altered  this  ordinary  meaning, 
but  have  in  many  cases  added  to  it  by  including  other  places  which 
in  ordinary  language  would  not  be  considered  to  be  streets. 

Thus  the  Towns  Improvement  Clauses  Act,  1847,  10  &  11  Vict, 
c.  34,  8.  3,  says  that  "  the  word  street  shall  extend  to  and  include  any 
road,  square,  court,  alley,  and  thoroughfare  within  the  limits  "  to  which 
the  Act  applies;  and  the  Waterworks  Clauses  Act  of  the  same  year 
(c.  17,  s.  3)  declares  that  "the  word  street  shall  include  any  square, 
court,  or  alley,  highway,  lane,  road,  thoroughfare,  or  public  passage  or 
place ; "  and  the  Towns  Police  Clauses  Act,  c.  89,  s.  3,  enacts  that  "  the 
word  street  shall  extend  to  and  include  any  road,  square,  court,  alley, 
and  thoroughfare  or  passage." 

The  General  Public  Health  Act,  1875,  following  the  earlier  Act  of 
1848,  but  not  verbatim,  declares  in  sec.  4  that  the  word  "street" 
includes  any  highway  (not  being  a  turnpike  road)  and  any  public 
bridge  (not  being  a  county  bridge),  and  any  road,  lane,  footway,  square, 
court,  alley,  or  passage,  whether  a  thoroughfare  or  not."  A  road  with 
houses  along  it  is  not  prevented  from  being  a  street  by  reason  of  being 
a  turnpike  road  {Nutter  v.  Accrington  Board,  1878,  4  Q.  B.  D,  375), 
though  a  road  without  houses,  if  a  turnpike  road,  was  not  included  by 
the  definition.     Directly  it  ceases  to  be  a  turnpike  road  it  becomes  a 


STEEET  659 

street  {Rampstead  Vestrij  v.  Cotton,  1885,  16  Q.  B.  D.  483).  The 
exception  has  now  become  of  little  importance,  as  turnpike  roads  have 
nearly  disappeared. 

The  definition  given  by  the  Metropolis  Management  Act,  1855,  18  & 
19  Vict.  c.  120,  s.  250),  was  in  very  similar  language.  The  Amending 
Act  of  1862,  25  &  26  Vict.  c.  102,  s.  112,  further  included  "any  mews, 
and  a  part  thereof."  And,  finally,  the  Public  Health  London  Act,  1891, 
by  sec.  141,  declares  that  "  the  expression  street  includes  any  highway 
and  any  public  bridge,  and  any  road,  lane,  footway,  square,  court,  alley, 
or  passage,  whether  a  thoroughfare  or  not,  and  whether  or  not  there 
are  houses  in  such  street."  For  the  purposes  of  that  Act,  therefore, 
it  is  immaterial  whether  there  are  any  houses  along  the  place  alleged 
to  be  a  street. 

These  definitions,  it  will  be  noticed,  generally  include  under  the 
term  street  places  which  would  not  ordinarily  come  within  it.  The 
true  effect  to  be  given  to  such  definitions  has  been  much  discussed. 
Keported  cases  show  many  judges  to  have  thought  that  places  which  in 
ordinary  language  would  not  be  deemed  streets  ought  to  be  deemed 
streets  for  the  purposes  of  the  particular  Act  they  had  to  consider, 
which  in  most  cases  was  one  of  the  Public  Health  Acts.  These 
doubts  have  now  been  set  at  rest.  And  it  may  be  considered  settled 
that  any  place  which  comes  within  the  definition  given  by  any  Act 
must  be  considered  a  street  under  that  Act  (Portsmouth  (Mayor)  v. 
Smith,  1883,  13  Q.  B.  D.  184;  Jowett  v.  Idle  Board,  1888,  W.  N.  p.  87; 
Fenwick  v.  Croydon  RuraJ,  Authority,  [1891]  2  Q.  B.  216). 

The  word,  however,  must  still  be  construed  in  different  ways,  accord- 
ing to  the  scope  of  the  particular  section  in  which  it  occurs.  Thus  it 
may  mean  either  the  roadway  in  a  town  or  the  roadway  with  the 
adjoining  houses,  or  again,  it  may  be  a  place  absolutely  without  houses, 
which  is,  by  virtue  of  one  of  the  above  definitions,  to  be  deemed  a  street. 
It  need  not  necessarily  be  a  place  over  which  the  public  have  any  general 
right  of  passage,  but  may  remain  private  property.  As  will  be  seen  infra, 
the  legal  rights  of  local  authorities  over  public  streets  are  larger  than 
and  differ  considerably  from  those  they  possess  over  private  streets. 
But  both  come  under  their  jurisdiction. 

Public  Streets  vested  in  Local  Authm'ities. — The  general  care  of  the 
roadway  of  all  public  streets  is  entrusted  to  the  district  councils  (see 
Highways)  ;  but  in  all  urban  districts  those  streets  themselves,  which 
are  repairable  by  the  public,  and  the  pavement  stones  and  other 
materials  thereof,  and  all  buildings,  implements,  and  other  things  pro- 
vided for  the  purposes  thereof,  are  vested  in  the  urban  authority 
{Public  Health  Act,  1875,  s.  149;  see  also  18  &  19  Vict.  c.  120,  s.  96, 
as  to  London).  The  effect  of  these  sections  is  to  make  the  authority  the 
owners  of  so  much  of  the  soil  as  is  comprised  under  the  meaning  of  the 
word  street,  that  is  of  such  a  depth  as  they  may  require  for  the  purpose 
of  laying  sewers,  or  water  or  gas  pipes,  and  to  such  a  height  as  may  be 
necessary  for  use  of  the  roadway.  It  was  thought  at  one  time  that  the 
ownership  might  include  the  soil  to  an  indefinite  depth,  and,  accordingly, 
the  Highway  Act,  1878,  41  &  42  Vict.  c.  77,  s.  27,  expressly  declared 
that  the  ownership  of  mines  and  minerals  vinder  certain  roads  should 
not  be  affected,  but  should  remain  in  the  original  landowners.  It  has 
since  been  held  that  the  ownership  is  limited  to  the  area  of  ordinary 
user  of  a  portion  of  ground  as  a  street.  The  urban  authority  cannot, 
therefore,  as  owners,  complain  of  anything  placed  so  high  above,  or  of 


660  STREET 

any  works  so  far  below  the  surface,  as  not  to  interfere  with  that  user 
{Wandsworth  Board  of  Works  v.  United  Telephone  Co.,  1884,  13  Q.  B.  D. 
905 ;  Finchley  Electric  Light  Co.  v.  Finchley  D.  C,  [1903]  1  Ch.  437) ; 
though,  of  course,  as  highway  authority  they  might  intervene  to  prevent 
any  interference  with  the  road  which  amounted  to  a  nuisance. 

The  streets  vested  in  urban  authorities  are  only  those  which  are 
highways  repairable  by  the  inhabitants  at  large.  Formerly,  when  ground 
was  dedicated  to  and  used  by  the  public  as  a  highway,  it  became  fre- 
quently ijpso  facto  repairable  by  the  public.  This  was  found  to  be  a 
burden ;  and  since  the  Highway  Act,  1835,  highways  can  only  become 
so  repairable  when  they  have  first  been  put  into  a  proper  state  by  their 
owners,  and  the  prescribed  formalities  have  been  observed  (see  High- 
ways), Urban  authorities  have  powers  under  the  Public  Health  Act, 
1875,  ss.  146-148,  to  agree  to  take  over  roads  and  bridges,  and  so  make 
them  repairable  by  the  public.  They  can  also,  as  will  be  seen  infra, 
take  over  new  streets,  when  satisfied  that  they  have  been  properly 
made  up. 

They  can  also  enlarge  the  area  of  existing  streets. 

Enlarging  and  Improving  Streets. — An  urban  authority  may  purchase 
any  premises  for  the  purpose  of  widening,  opening,  enlarging,  or  other- 
wise improving  any  street,  or,  with  the  sanction  of  the  Local  Govern- 
ment Board,  for  the  purpose  of  making  any  new  street  (Public  Health 
Act,  1875,  s.  154).  This  would  be  under  their  general  powers  for  pur- 
chasing land  (see  ss.  174-178).  In  London,  under  the  Act  57  Geo.  in. 
c.  xxix.,  the  road  authorities  can  acquire  such  premises  as  they  want 
compulsorily ;  in  other  towns  this  can  only  be  done  by  means  of  a  Pro- 
visional Order  sanctioned  by  the  Local  Government  Board  and  confirmed 
by  Parliament.  The  authority  may  also  prescribe  the  line  in  which  any 
house  or  building  situate  in  any  street  may  be  rebuilt,  after  being  pulled 
down,  and  may  prevent  the  owner  erecting  any  building  except  on  such 
line ;  but  must  compensate  him  for  any  loss  or  damages  he  sustains  in 
consequence  (s.  155).  This  compensation  would  usually  cost  much  less 
than  the  purchase  of  the  premises.  But  buildings  are  not  always 
pulled  down  at  the  time  when  local  authorities  desire  to  improve  streets,, 
so  purchase  may  in  some  cases  be  necessary.  Urban  authorities  may 
regulate  the  line  of  buildings,  remove  obstructions,  and  supervise  all 
adjoining  erections  which  interfere  with  free  locomotion  along  the 
roadways  of  streets  in  their  district  (10  &  11  Vict.  c.  34,  ss.  66-74). 

Repair  of  Streets. — All  highway  authorities  \i.e.  now  the  district 
councils,  urban  and  rural]  have  large  powers  for  managing  roads,  under 
the  Highways  Acts  and  Part  IV.  of  the  Public  Health  Act,  1875.  Urban 
councils  have  also,  under  the  latter  Act,  further  powers  with  reference 
to  the  roadways  of  streets,  whether  public  or  private.  They  are  bound 
from  time  to  time  to  cause  all  public  streets,  which  are  vested  in  them,, 
to  be  levelled,  paved,  metalled,  flagged,  channelled,  altered,  and  repaired 
as  occasion  may  require  (s.  149),  and  may  light  any  street,  public  or 
private,  if  they  think  proper  to  do  so  (s.  161).  Urban  authorities  may 
also  require  the  owners  or  occupiers  of  premises  adjoining  private 
streets  to  level,  pave,  metal,  flag,  channel,  or  make  them  good,  and  also 
to  sewer  and  light  them  to  their  satisfaction  (s.  150).  When  all  these 
various  works  have  been  done  to  the  satisfaction  of  the  urban  authority, 
but  not  before,  they  may  declare  the  street  to  be  a  highway  repairable 
thenceforth  at  the  public  expense  (s.  152).  If  only  some  of  them  have 
been  done,  the  liability  to  maintain  the  street,  and  to  do  the  other  works. 


STREET  661 

when  called  on  to  do  them,  still  attaches  to  the  owners  and  occupiers  of 
the  adjoining  property  (A.-G.  v.  Bidder,  1881,  47  J.  P.  263).  After  this 
decision  there  was  some  doubt  as  to  what  kind  of  paving  was  required 
in  order  to  satisfy  the  requirements  of  the  Act.  This  was  set  at 
rest  in  1890  by  53  &  54  Vict.  c.  59,  s.  11,  which  declared  that  a  street 
or  part  of  a  street  which  has  been  asphalted,  or  paved  with  wood,  tar 
paving,  or  artificial  stone,  or  other  improved  paving  of  any  kind,  shall 
be  deemed  to  have  been  duly  paved,  provided  it  has  been  paved  with 
such  kind,  as  well  as  with  such  quality,  of  paving  as  the  local  authority 
shall  consider  suitable  for  the  street.  That  Act,  moreover,  by  sec.  41, 
provided  that  in  districts  where  Part  III.  has  been  adopted,  whenever 
all  or  ani/  of  the  above  works  have  been  executed  in  a  street  or  part  of 
a  street,  and  the  urban  authority  are  of  opinion  that  such  street  or  part 
of  a  street  ought  to  be  repairable  by  the  public,  they  may  declare  it  to 
be  so  repairable,  unless  the  owners  object.  This  power,  enabling  urban 
authorities  to  take  to  private  streets  in  which  all  the  specified  works 
had  not  first  been  done  by  the  property  owners,  was  given  again  by  the 
(Adoptive)  Private  Street  Works  Act,  1892,  55  &  56  Vict.  c.  57,  s.  19, 
which  gives  the  owners  no  right  of  objection  to  the  street  so  becoming 
public.  Sec.  20,  on  the  other  hand,  gives  them  a  right  to  require  the 
urban  authority  to  take  to  the  street  when  the  works  have  been  done  to 
their  satisfaction.  Sec.  15  also  empowers  the  urban  authority,  if  they 
think  fit,  to  contribute  the  whole  or  a  portion  of  the  expenses  of  any 
private  street  works  out  of  the  general  rates. 

In  London  it  is  immaterial  whether  the  highway  has  become  repair- 
able by  the  inhabitants  at  large  or  not.  The  owners  of  property 
adjoining  all  places  which  are  new  streets  (vide  infra)  are  liable  to  the 
expenses  of  paving  (18  &  19  Vict.  c.  120,  s.  105).  After  the  original 
work  has  been  done,  subsequent  repairs  must  be  done  at  the  expense 
of  the  general  rates  {B.  v.  Hackney  Board  of  Works,  1873,  L.  R. 
8  Q.  B.  528). 

Sewers  when  made  vest  in  the  local  authority  (see  Drains).  Where, 
therefore,  a  sewer,  or  portion  of  a  sewer,  which  a  private  owner  could 
be  required  to  make,  has  once  been  made,  they  cannot  require  the  pro- 
perty owners  to  do  the  work  again  should  the  sewer  become  defective 
or  unsuitable  to  the  wants  of  the  district  {Bonella  v.  Tvnckenhani  Board, 
1887,  20  Q.  B.  D.  63 ;  ffomsey  Board  v.  Davis,  [1893]  1  Q.  B.  756).  The 
other  works  which  may  be  required  stand  on  a  different  footing ;  and 
if  the  street  has  not  been  adopted  so  as  to  make  it  repairable  at  the 
public  expense,  the  urban  authority  can  call  on  the  owners  (except  in 
London)  to  do  what  is  necessary  to  put  the  street  in  proper  condition  as 
often  as  occasion  requires  (Barry  and  Cadoxton  Board  v.  Parry,  1895, 
72  L.  T.  692). 

Care  and  Cleansing. — The  care  and  maintenance  of  most  public  roads 
is  committed  to  the  various  district  councils,  in  their  capacity  as  sur- 
veyors of  highways  (see  Highway  Authority).  Besides  this,  every 
urban  authority  and  any  rural  authority  invested  with  the  requisite 
powers  may,  and  when  required  by  the  Local  Government  Board  shall, 
themselves  undertake  or  contract  for  the  proper  cleansing  of  streets, 
and  may  also  undertake  or  contract  for  their  being  watered  (Public 
Health  Act,  1875,  s.  42).  Any  local  authority  may  also  make  by-laws 
imposing  on  the  occupiers  the  duty  of  cleansing  footways  and  pavements 
adjoining  their  premises  (ibid.,  s.  44).  The  roadways  if  cleansed  at  all, 
must  be  cleansed  at  the  public  expense.     In  London  it  is  the  duty  of 


662  STREET 

every  sanitary  authority  to  keep  the  streets  of  their  district  which  are 
repairable  by  the  inhabitants  at  large,  including  the  footways,  properly 
swept  and  cleansed,  and  to  collect  and  remove  all  street  refuse  so  far  as 
is  reasonably  practicable.  If  they  fail  to  discharge  this  duty  they  are 
liable  to  a  penalty  of  £20  (54  &  55  Vict.  c.  76,  s.  29).  Street  refuse  is 
defined  by  sec,  141  as  meaning  "  dust,  dirt,  rubbish,  mud,  road  scrapings, 
ice,  snow,  and  filth."  The  sanitary  authority  are  also  required  to  make 
and  enforce  by-laws  for  the  prevention  of  nuisances  arising  from  refuse, 
salt,  ashes,  offal,  carrion,  fish,  filth,  or  other  matter  or  thing  in  any  street, 
public  or  private  ;  but  such  by-laws  shall  not  make  it  an  offence  to  lay 
sand  or  other  material  in  any  street,  subject  to  prescribed  regulations,  in 
time  of  frost  to  prevent  accidents,  or  litter  or  other  matter  to  prevent 
the  freezing  of  water  in  pipes,  or  to  prevent  noise  in  cases  of  sickness 
(s.  16).  Local  Acts  in  some  cases  give  further  powers  for  these 
purposes. 

Works  interfering  with  Street. — Interference  with  existing  streets  is 
carefully  regulated.  The  construction  of  any  vault,  arch,  or  cellar  under 
the  carriageway  of  any  street,  public  or  private,  without  the  written 
consent  of  the  district  authority  is  forbidden  (18  &  19  Vict.  c.  120,  s.  101 ; 
38  &  39  Vict.  c.  55,  s.  26  (2)).  Outside  London  consent  is  not  required 
for  constructing  them  under  the  footway  of  a  private  street;  but  as 
public  streets  are,  as  wo  have  seen,  vested  in  the  urban  authority,  such 
works  could  be  prohibited.  In  London  there  seems  to  be  no  distinction 
between  the  carriageway  and  the  footway ;  and  such  excavations  may 
not  be  made  at  all  without  the  required  consent. 

It  is  unlawful  to  erect  or  bring  forward  or  to  build  any  addition  to 
any  house  or  building  in  any  street  beyond  the  front  main  wall  of  the 
house  or  building  on  either  side  thereof  in  the  same  street  without  the 
written  consent  of  the  urban  authority  (51  &  52  Vict.  c.  52,  s.  3).  This  is 
similar  to  the  regulation  given  by  sec.  75  of  the  Metropolis  Management 
Act,  1862.  But  under  it  the  line  of  buildings  has  to  be  defined  by  the 
superintending  architect  of  the  County  Council.  Outside  London  there 
is  no  such  officer ;  and  the  line  beyond  which  buildings  may  not  be  erected 
is  left  to  be  ascertained  as  a  fact  when  a  dispute  arises.  Difficulties  occur 
sometimes  where  the  line  of  houses  is  not  continuous.  The  Courts  before 
whom  the  matter  is  brought  must  decide  on  the  facts  necessary  to  give 
them  jurisdiction.  The  erection  of  a  house  in  front  of  the  neighbouring 
houses  is  a  public  nuisance,  and  may  be  restrained  by  injunction  in  an 
action  brought  at  the  suit  of  the  Attorney- General,  or  a  mandatory  order 
to  pull  down  a  house  so  erected  may  be  made  {Attorney-General  v. 
Wimbledon  Estate  Co.,  [1904]  2  Ch.  34). 

Pipes,  Sewers,  etc. — The  roadway  of  a  street  is  usable  for  various  objects 
besides  the  mere  passing  to  and  fro  of  the  public.  Thus  gas  and  water 
companies  authorised  by  Act  of  Parliament  to  supply  a  particular  district 
may  break  up  streets  for  the  purpose  of  laying  their  mains  and  supply 
pipes  (see  10  Vict.  c.  15,  ss.  6-12 ;  10  Vict.  c.  17,  ss.  28-34  and  48-52).  If 
without  parliamentary  powers,  such  companies  cannot  lawfully  interfere 
with  any  highway  {B.  v.  Longton  Gas  Co.,  1860,  2  El.  &  El.  651 ;  A.-G.  v. 
Cambridge  Gas  Co.,  1868,  L.  R.  4  Ch.  71).  Such  powers  may  now  be 
obtained  with  comparative  ease  by  means  of  Provisional  Order  under  the 
Gas  and  Waterworks  Facilities  Act,  1870,  33  &  34  Vict.  c.  70.  Electric 
lighting  companies  may  also  obtain  the  same  powers  (45  &  46  Vict.  c.  56) ; 
and  so  may  telegraph  companies  (26  &  27  Vict.  c.  112 ;  55  &  56  Vict.  c.  59). 
The  consent  of  the  highway  authority  to  works  interfering  with  the 


STEEET  663 

roadway  is  almost  always  required ;  and  such  authority  may  lawfully 
make  a  bargain  as  to  the  terms  on  which  the  consent  will  be  given 
{Edgware  Highway  Board  v.  Harrow  Gas  Co.,  1874,  L.  K.  10  Q.  B.  92). 
District  councils  are  empowered  to  take  eewers  through,  across,  or  under 
any  street,  public  or  private  (38  &39  Vict.  c.  55,  s.  16).  They  also  may 
supply  water  or  lighting  to  their  district.  If  they  do,  they  may  break 
up  streets  in  the  same  way  as  other  bodies  with  parliamentary  powers ; 
and,  as  they  are  now  the  road  authorities  and  owners  of  public  streets, 
are  under  no  obligation  as  to  obtaining  the  consent  of  anyone  else  for 
the  works  they  execute,  and  may  place  pipes  in  or  electric  lighting  wires 
over  streets  without  the  permission  of  the  owners  of  the  soil  {Fareham 
Board  v.  Smith,  1891,  7  T.  L.  K.  443).  On  the  other  hand,  in  case  of 
telegraph  wires  carried  across  a  street  with  the  permission  of  the  owners 
of  the  property  to  which  the  wires  are  affixed,  at  such  altitude  as  not  to 
interfere  with  the  traffic,  the  district  council  has  no  power  of  veto,  either 
as  highway  authority  or  as  owner  of  the  street  (  Wandsworth  Board  v. 
United  Telephone  Co.,  1884,  13  Q.  B.  D.  905).  The  provisions  as  regards 
tramways  in  streets  are  explained  in  a  separate  article,  Tramway. 

New  Streets. — In  London,  under  the  Metropolis  Management  Acts, 
1855  and  1862,  large  powers  are  given  to  compel  the  owners  of  adjoining 
property  to  carry  out  various  expensive  works,  e.g.  sewering  and  paving 
in  new  streets ;  and  there  have  been  many  cases  before  tlie  Courts  in 
which  the  question  whether  a  particular  place  was  or  was  not  a  new 
street  had  to  be  determined.  A  street  may  come  into  existence  either 
by  houses  being  built  along  a  piece  of  ground  or  a  lane  or  footpath 
according  to  a  building  scheme,  or  gradually  by  houses  being  erected 
along  an  old  highway.  When  houses  are  so  erected  as  to  make  the 
place  a  street  for  the  first  time,  in  the  ordinary  meaning  of  the  word,  it 
becomes  a  new  street  {Robinson  v.  Barton  Board,  1882,  21  Ch.  D.  632 ; 
8  App.  Cas.  798).  In  London  the  expression  new  street  is  defined  to 
include  all  streets  formed  and  laid  out  since  1862,  and  also  all  streets 
the  maintenance  and  paving  of  the  roadway  whereof  had  not  then  been 
taken  into  charge  and  assumed  by  the  highway  authorities,  and  all  streets 
partly  formed  or  laid  out  (25  &  26  Vict.  c.  102,  s.  112).  This  definition, 
however,  does  not  exclude  highways  already  repairable  by  the  public, 
when  they  become  streets  in  the  ordinary  sense  by  the  erection  of  houses 
along  them  {Pound  v.  Plumstead Board,  1871,  L.  R.  7  Q.  B.  183 ;  Hampstead 
Vestry  v.  Cotton,  1887,  12  App.  Cas.  1). 

Outside  London  the  liability  to  do  such  works  depends  not  on  the 
question  of  the  street  being  new,  but  on  whether  the  highway  has 
become  repairable  by  the  public.  An  urban  authority  may,  however, 
make  by-laws  with  reference  to  the  level,  width,  and  construction  of  new 
streets,  and  the  provisions  for  the  sewerage  thereof,  and  the  provision  in 
connection  with  the  laying  out  of  new  streets  of  secondary  means  of 
access  where  necessary  for  the  purpose  of  the  removal  of  house  refuse 
and  other  matters  (Public  Health  Act,  1875,  s.  157  ;  Act  of  1890,  s.  33). 
The  question  of  what  constitutes  a  new  street  is  thus  important  in  all 
towns.  By-laws  have  been  made  in  most  urban  districts,  and  cases 
have  frequently  come  before  the  Courts  upon  their  construction.  The 
Act  authorises  by-laws  regulating  not  merely  the  roadway,  but  the 
buildings  adjoining  which  form  part  of  the  street  {Baker  v.  Portsmouth, 
1878,  3  Ex.  D.  157).  Thus  a  by-law  may  properly  require  the  roadway 
to  be  made  and  completed  before  new  buildings  are  commenced  (  Wood- 
hill  V.  Sunderland  Mayor,  1887,  57  L.  T.  303),  and  may  require  the  space 


664  STEEET  MUSIC 

between  the  houses  to  be  of  a  specified  minimum  width  {Hendon  Board 
V.  Pounce,  1889.  42  Ch.  D.  602  ;  R  v.  Goole  Board,  [1891]  2  Q.  B.  212). 
But  in  case  of  an  existing  road  which  becomes  a  new  street  by  the 
erection  of  houses,  buildings  cannot  be  disapproved  merely  because  they 
come  in  front  of  the  line  of  previously  existing  buildings  standing  back 
from  the  roadway  {Rohinson  v.  Barton  Board,  1882,  8  App.  Cas.  798). 

Local  authorities  have  also  powers  of  restricting  the  user  of  streets 
so  as  to  secure  the  observance  of  regulations  calculated  to  provide  for 
public  safety  and  convenience. 

Public  Safety. — Under  the  Towns  Improvement  Clauses  Act,  10  &  11 
Vict.  c.  34,  urban  authorities  have  to  see  that  streets  are  named  and  the 
houses  numbered  (ss.  64,  65) ;  to  see  that  any  building  which  is  dangerous 
to  passers-by  or  to  the  occupiers  of  neighbouring  buildings  is  fenced  and 
promptly  repaired  (ss.  75-78) ;  and  to  take  proper  precautions  for  guard- 
ing against  accident  during  the  construction  or  repair  of  streets,  sewers, 
or  drains,  and  similar  works  in  them,  by  shoring  up  and  protecting  the 
adjoining  houses,  and  stopping  the  traffic.  They  must  also  keep  excava- 
tions properly  lighted  and  guarded  during  the  night  (s.  74) ;  and  must 
also  see  that  streets  are  properly  guarded  during  building  operations. 
This  may  also  be  provided  for  under  sec.  34  of  the  Public  Health  Act, 
1890,  where  that  has  been  adopted.  There  are  similar  enactments  for 
London. 

Public  Convenience. — Under  the  Towns  Police  Clauses  Act,  10  &  11 
Vict.  c.  89,  urban  authorities  have  large  powers  for  dealing  with  obstruc- 
tions and  nuisances  in  streets.  Thus  they  may  prescribe  the  route  to 
be  taken  by  vehicles  in  any  case  when  the  streets  are  thronged  (s.  21); 
may  divert  traffic  from  the  neighbourhood  of  places  of  public  worship 
during  the  hours  of  service  (s.  22) ;  and  may  impound  cattle  straying 
unattended  in  any  street  (ss.  24-27).  A  large  number  of  acts  causing 
obstruction,  annoyance,  or  danger  to  the  residents  or  passengers  are  made 
offences  punishable  summarily  (ss.  28,  29). 

See  also  2  &  3  Vict.  c.  47,  s.  60;  30  &  31  Vict.  c.  134,  s.  5;  54  &  55 
Vict.  c.  76,  s.  17,  which  contain  similar  provisions  for  the  Metropolitan 
area. 

Street  IVIUSiC. — 1.  The  playing  of  music  in  public  streets,  if 
so  conducted  as  to  cause  a  public  nuisance,  is  indictable,  although  the 
musicians  are  entitled  to  use  the  streets  for  passage.  But  resort  is 
never  had  to  this  remedy. 

2.  In  London  the  playing  of  music  in  the  streets  is  regulated — 

(a)  By  2  &  3  Vict.  c.  47,  s.  54  (14),  which  prohibits  the  use  of  a  horn 
or  other  noisy  instrument  to  call  persons  together,  or  announce  any  show 
or  entertainment,  or  for  hawking,  selling,  distributing,  or  collecting  any 
article,  or  for  obtaining  money  by  alms.  This  has  been  applied  to  the 
Salvation  Army  (Met.  Pol.  Guide,  4th  ed.,  1906,  p.  60),  and  to  muffin 
bells,  but  not  to  coach  horns.  Officers  of  the  Post  Office  are  excepted, 
and  the  bands  of  the  army,  navy,  and  reserve  forces  are  not  interfered 
with. 

(b)  By  Bass's  Act,  27  &  28  Vict.  c.  55,  any  householder,  personally,  or 
by  his  servant  or  by  a  constable,  may  require  a  street  organ-grinder  or 
musician  or  street  singer  to  depart  from  the  neighbourhood  of  his  house 
on  stating  to  the  musician  (Shields  v.  Howard,  [1897]  1  Q.  B.  646)  one  of 
the  following  reasons: — (i.)  Illness  in  the  house;  (ii.)  interruption  of 
the  pursuits  or  occupation  of  the  inmates ;  (iii.)  any  other  reasonable  or 


STRIKE  665 

sufficient  cause.  If  the  musician  continues  he  is  liable  to  summary 
conviction  and  fine,  or  in  default  to  imprisonment  under  2  &  3  Vict. 
c.  47,  s.  77  (B.  V.  Hopkins,  [1893]  1  Q.  B.  621),  and  may  be  summarily 
arrested,  and,  if  necessary,  admitted  to  bail  under  2  &  3  Vict.  c.  47,  s.  72. 
Certain  by-laws  with  reference  to  street  music  have  been  made  by  the 
London  County  Council  and  the  Metropolitan  Borough  Councils. 

3.  Outside  London,  music  in  streets  is  regulated — (a)  under  local 
Acts  affecting  particular  districts ;  (h)  under  by-laws  made  by  borough 
or  County  Councils  under  sec.  23  of  the  Municipal  Corporations  Act, 
1882,  and  sec.  16  of  the  Local  Government  Act,  1888.  After  much 
controversy,  especially  with  reference  to  the  Salvation  Army,  the 
prevailing  judicial  opinion  is  now  that  music  in  streets  outside  the 
Metropolitan  Police  District  can  be  forbidden  by  by-law,  whether  it 
does  or  does  not  cause  annoyance  to  inhabitants  or  passengers  (see 
Kruse  Y.Johnson,  [1898]  2  Q.  B.  91,  where  most  of  the  previous  cases 
are  considered,  and  the  contrary  view,  supported  by  many  previous 
decisions,  is  expounded  by  Mathew,  J.). 

Strict  Entail. — "Where  lands  are  directed  to  be  settled  on  A. 
and  his  heirs  in  strict  entail,  there  seems  little  doubt  that  A.  ought  to 
be  made  tenant  for  life  only"  (Jarman,  Wills,  5th  ed.,  vol.  ii.  p.  1200; 
Lewin  on  Trusts,  11th  ed.,  p.  132;  Graves  v.  Ricks,  1841,  11  Sim.  536; 
59  E.  E.  980 ;  54  R.  R.  425) ;  and  if  the  direction  be  that  lands  are 
to  be  strictly  entailed  on  A.  the  Court  will  direct  a  life  estate  in  A., 
remainder  to  his  first  and  other  sons  in  succession,  remainder  to  his 
daughters  as  tenants  in  common  in  tail.  Again,  if  the  direction  is  that 
land  is  to  be  "  closely  entailed,"  the  limitations  will  be  as  strict  as  the 
law  will  allow,  e.g.  a  life  estate  only  to  all  persons  in  esse  at  the  death 
of  the  testator  {Woolmore  v.  Burrows,  1827,  1  Sim.  526;  27  R.  R.  225; 
Sealeyv.  Stawell,  1875,  9  Ir.  R.  Eq.  499).    See  Estates  of  Inheritance. 

Strict  Settlement. — The  order  of  the  limitations  in  a  "  strict 
settlement "  of  a  husband's  family  estates  on  his  marriage  is  as  follows : — 
To  the  use  of  the  intended  husband  for  his  life,  remainder  to  the  use  of 
his  first  and  other  sons  successively  in  tail,  with  remainder  to  the 
daughters  as  tenants  in  common  in  tail.  In  addition  there  are  pro- 
visions for  the  pin-money  and  jointure  of  the  wife,  and  for  raising 
portions  for  younger  children  {Dod  v.  Dod,  1754,  Amb.  274;  27  E.  R. 
184).     See  article  Settlements,  Precedent  XL,  Vol.  XIII. 

The  term  "strict  settlement,"  without  more,  is  understood  in  the 
common  form  of  settlements  to  imply  estates  for  life  without  impeach- 
ment of  waste  {Davenport  v.  Davenport,  1863,  1  Hem.  &  M.  779  ;  71 
E.  R.  339 ;  but  see  Stanley  v.  Covlthurst,  1870,  L  R.  10  Eq.  259). 

A  direction  in  a  will  that  the  girls'  shares  (of  personalty)  are  to  be 
settled  on  them  strictly  will  be  carried  out  on  the  marriage  of  each  of 
them  by  directing  the  income  to  be  paid  to  her  during  the  joint  lives 
of  herself  and  her  husband  for  her  separate  use,  without  power  of  anti- 
cipation, and  if  she  should  die  in  the  lifetime  of  her  husband  then  her 
share  shall  go  as  she  shall  by  will  appoint,  and  in  default  of  appointment, 
to  her  next  of  kin  exclusively  of  her  husband,  and  that  if  she  should 
survive  her  husband  then  the  share  shall  belong  to  her  absolutely  {Loch 
V.  Bagley,  1867,  L.  R.  4  Eq.  122 ;  Lewin  on  Triists,  11th  ed.,  p.  589). 

Strike. — See  Trade  Unions;  Combination;  Conspiracy;  Intimi- 
dation. 


666  STEIKING  OFF  THE  ROLLS 

Striking  off  the  Rolls.— See  Solicitor. 

Striking'  out. — Parties. — Order  16,  r.  11,  provides,  inter  alia, 
that  the  Court  may,  at  any  stage  of  the  proceedings,  either  upon  or 
without  the  application  of  either  party,  and  on  such  terms  as  may 
appear  just,  order  that  the  names  of  any  parties  improperly  joined, 
whether  as  plaintiffs  or  defendants,  be  struck  out.  An  application  to 
strike  out  a  plaintiff  or  defendant  under  this  rule  may  be  made  at  any 
time  before  trial,  by  motion  or  summons,  or  at  the  trial  of  the  action 
in  a  summary  manner  (Order  16,  r.  12).  But  the  application  ought  to 
be  made  at  the  earliest  moment.  One  of  several  co-plaintiffs  has  no 
absolute  right  to  withdraw  from  an  action  and  have  his  name  struck 
out.  When  two  co-plaintiffs  disagree  the  proper  course  in  a  Chancery 
action  is  to  order  one  of  them  to  be  struck  out  and  added  as  a  defen- 
dant, but  in  such  a  case  security  would  be  required  for  the  costs  of  the 
original  defendants  {In  re  Matheivs,  Oates  v.  Mooncy,  [1905]  2  Ch.  460). 
Where  a  defendant  applied  to  have  his  name  struck  out  after  delivering 
a  defence,  the  Court  granted  the  application,  but  without  costs  (  Vallance 
V.  Birmingham,  Land  Corporation,  1876,  2  Ch.  D.  369). 

Where  an  officer  of  a  corporation  was  made  a  defendant  for  the  pur- 
pose of  discovery,  and  no  relief  was  sought  against  him,  it  was  held  that 
he  was  improperly  joined,  and  his  name  was  struck  out  ( Wilson  v.  Church, 
1878,  9  Ch.  D.  552 ;  and  see  Burstall  v.  Beij/us,  1884,  26  Ch.  D.  35). 
Where  one  of  two  defendants  showed  that  there  was  no  cause  of  action 
against  him  his  name  was  struck  out  {Banbury  v.  Postmaster-General, 
[1906]  1  K.  B.  178,  C.  A.).  As  to  striking  out  the  name  of  a  party  on 
the  ground  that  he  did  not  authorise  the  proceedings,  see  Nurse 
V.  Durnford,  1879,  13  Ch.  D.  764 ;  Schjott  v.  Schjott,  1881,  45  L.  T.  333  ; 
Newhiggin  Gas  Co.  v.  Armstrong,  1879,  13  Ch.  D.  310;  Reynolds  v.  Howell, 
1873,  L.  R.  8  Q.  B.  398;  In  re  Savage,  1880,  15  Ch.  D.  557;  Fricker 
V.  Van  Grwtten,  [1896]  2  Ch.  649. 

Pleadings. — The  Court  may,  at  any  stage  of  the  proceedings,  order  to 
be  struck  out  or  amended  any  matter  in  any  indorsement  or  pleading 
which  may  be  unnecessary  or  scandalous,  or  which  may  tend  to  prejudice, 
embarrass,  or  delay  the  fair  trial  of  the  action ;  and  may  in  any  such  case 
order  the  costs  of  the  application  to  be  paid  as  between  solicitor  and 
client  (Order  19,  r.  27).  In  Cave  v.  Crew,  1893,  41  W.  R.  359,  a  state- 
ment of  claim  was  struck  out  on  the  ground  that  it  sought  relief 
substantially  different  from  that  claimed  by  the  writ ;  and  in  Williamson 
V.  London  and  Noi^th- Western  Ely.  Co.,  1879,  12  Ch.  D.  790,  a  reply 
setting  up  new  claims  and  pleading  evidence  was  wholly  struck  out  as 
embarrassing.  So  where  parts  of  a  statement  of  claim  were  unintelligible, 
other  parts  irrelevant,  and  others  contained  scandalous  charges,  the 
whole  of  it  was  struck  out  {Cashin  v.  Cradock,  1876,  3  Ch.  D.  376).  So 
where,  in  an  action  for  fraud,  the  statement  of  claim  contained  paragraphs 
showing  that  the  transaction  in  question  was  only  one  of  several  others 
of  a  similar  kind  by  which  other  persons  had  been  defrauded,  such 
paragraphs  were  struck  out  as  being  irrelevant  {Blake  v.  Albion  Life 
Assurance  Co.,  1876,  45  L.  J.  C.  P.  663).  Where  irrelevant  matter  is 
contained  in  a  pleading  which  raises  an  irrelevant  issue  it  will  be  ordered 
to  be  struck  out  {Eassam  v.  Budge,  [1893]  1  Q.  B.  571,  C.  A. ;  Murray 
v.  P:pso7n  Local  Board,  [1897]  1  Ch.  35). 

In  Phillips  V.  Phillips,  1878,  4  Q.  B.  D.  127,  a  statement  of  claim  in 
an  action  for  recovery  of  land  was  struck  out  as  embarrassing,  because 


STEIKING  OUT  667 

it  merely  contained  a  general  statement  that  the  plaintiff  was  entitled 
by  virtue  of  certain  assurances,  wills,  documents,  etc.,  without  specifying 
the  nature  of  the  documents  or  further  describing  them  (cp.  Evelyn 
V.  Evelyn,  1880,  28  W.  E.  531). 

In  Smith  v.  Richardson,  1878, 4  C.  P.  D.  112,  a  statement  of  claim  in 
which  a  vendor  of  goods  and  the  indorsee  of  a  dishonoured  bill  (which 
had  been  given  for  the  price)  sued  jointly  for  the  price  and  upon  the 
bill,  was  struck  out  as  embarrassing.  And  where  two  plaintiffs  joined 
in  an  action  for  different  slanders,  it  was  held  that  they  must  elect 
which  of  them  would  proceed,  and  that  the  statement  of  claim  as  to  the 
other  must  be  struck  out  (Sandes  v.  Wildsmith,  [1893]  1  Q.  B.  771). 
Where  distinct  causes  of  action  are  improperly  joined  the  plaintiff  must 
elect  which  he  will  proceed  with,  and  the  other  will  be  struck  out 
(Smurthwaite  v.  Hannay,  [1894]  A.  C.  494;  Gower  v.  Cmddridge,  [1898] 
1  Q.  B.  348,  C.  A. ;  Stroud  v.  Zawson,  [1898]  2  Q.  B.  44,  C.  A. ;  Thompson 
V.  London  County  Council,  [1899]  1  Q.  B.  840,  C.  A.). 

The  cases  of  Rassam  v.  Budge,  [1893]  1  Q.  B.  571,  and  Fleming  v. 
Dollar,  1889,  23  Q.  B.  D.  388,  afford  instances  of  defences  in  actions  for 
libel  being  struck  out  as  embarrassing. 

Where  a  judge  has,  in  the  exercise  of  his  discretion,  refused  to  strike 
out  a  pleading  under  the  above  rule,  the  Court  of  Appeal  will  not,  as  a 
general  rule,  interfere,  except  in  extreme  cases,  or  where  it  appears  that 
the  judge  adopted  a  wrong  principle  {Watson  v.  Rodwell,  1876,  3  Ch.  D. 
380 ;  Golding  v.  Wharton,  etc.,  Co.,  1876,  1  Q.  B.  D.  374 ;  cp.  Knowles  v. 
Roberts,  1888,  38  Ch.  D.  263 ;  Davy  v.  Garrett,  1877,  7  Ch.  D.  473). 

Order  25,  r.  4,  provides  that  the  Court  may  order  any  pleading  to  be 
struck  out  on  the  ground  that  it  discloses  no  reasonable  cause  of  action 
or  answer,  and  in  any  such  case,  or  in  case  of  the  action  or  defence  being 
shown  by  the  pleadings  to  be  frivolous  or  vexatious,  may  order  the  action 
to  be  stayed  or  dismissed,  or  judgment  to  be  entered  accordingly,  as  may 
be  just.  The  Court  has  inherent  jurisdiction,  quite  apart  from  this  rule, 
to  strike  out  any  pleading  which  is  frivolous  or  vexatious,  and  to  prevent 
any  abuse  of  its  own  procedure  {Reichel  v.  Magrath,  1887,  14  App.  Cas. 
665 ;  Metropolitan  Bank  v,  Pooley,  1885,  10  App.  Cas.  210 ;  Stephenson  v. 
Garnett,  [1898]  1  Q.  B.  677,  C.  A.).  In  Lawrance  v.  N&rreys,  1890,  15 
App.  Cas.  210,  a  statement  of  claim  which  contained  general  allegations 
of  fraud  was  struck  out,  and  the  action  dismissed,  under  the  inherent 
jurisdiction  of  the  Court;  and  in  Willis  v.  Beauchamp,  1886, 11  Prob.  D. 
59,  an  action  to  obtain  the  revocation  of  letters  of  administration  granted 
in  1798  was  similarly  dismissed  as  frivolous  and  vexatious.  Where  the 
Court  is  of  opinion  that  the  indorsements  on  a  writ  are  an  abuse  of  the 
process  of  the  Court  it  will  order  the  whole  of  them  to  be  struck  out, 
notwithstanding  that  the  defendants  have  applied  to  strike  out  certain 
portions  only  {Huntly  {Marchioness  of)  v.  Gaskell,  [1905]  2  Ch.  656,  C.  A.). 

This  inherent  jurisdiction  of  the  Court  to  protect  itself  from  abuse  is 
recognised  and  extended  by  the  above  rule  (Order  25,  r.  4).  But  it  is  not 
intended  that  applications  under  the  rule  should  supply  the  place  of 
demurrers,  except  where  the  proceedings  are  frivolous  or  vexatious. 
A  pleading  will  not  be  struck  out  merely  because  it  would  have  been 
demurrable  under  the  old  rules,  nor  where  it  raises  an  important  question 
of  law.  It  is  not  sufficient  that  the  statement  of  claim  or  defence  should 
be  demurrable ;  the  Court  must  be  satisfied  that  it  discloses  no  reason- 
able cause  of  action  or  defence  on  the  face  of  it ;  and  extrinsic  evidence 
is  not  admissible  upon  applications  under  this  rule  {Huhhuck  &  Sons  v. 


668  STRIKING  OUT 

Wilkinson,  [1899]  1  Q.  B.,  at  p.  91,  C.  A. ;  Wyatt  v.  Palmer,  [1899]  1  Q.  B. 
106,  C.  A.;  A.-G.  v.  London  and  North- Western  Ely.  Co.,  [1892]  3  Ch. 
274 ;  In  re  Batthyany,  1884,  32  W.  K  379 ;  Dadswell  v.  Jacols,  1887, 
34  Ch.  D.  278 ;  Kellaway  v.  Bury,  1892,  66  L.  T.  599 ;  BepuUic  of  Peru 
V.  Peruvian  Guano  Co.,  1887,  36  Ch.  D.  489 ;  Shafto  v.  Bolckow,  1887, 
34  Ch.  D.  725 ;  Boddington  v.  Bees,  1885,  52  L.  T.  209 ;  Warden  v.  Sewdl, 
[1893]  2  Q.  B.  254 ;  Cowper  v.  Stoneham,  1893,  68  L.  T.  18).  In  Johnston 
V.  Johnston,  1885,  33  W.  R.  239,  a  statement  of  claim  in  an  action  to  set 
aside  an  ante-nuptial  settlement  on  the  ground  of  misrepresentations, 
was  struck  out  as  disclosing  no  reasonable  cause  of  action,  misrepresen- 
tations affording  no  ground  for  setting  aside  such  a  settlement  (and  see 
South  Retton  Coal  Co.  v.  Ram;ell  &  Co.,  [1898]  1  Ch.  465,  C.  A.) ;  and  in 
Dreyfus  v.  Peruvian  Guano  Co.,  1889, 41  Ch.  D.  151,  a  statement  claiming 
discovery  only,  in  aid  of  proceedings  in  a  foreign  Court,  was  struck  out, 
and  the  action  dismissed,  it  being  contrary  to  the  practice  of  the  Court  to 
entertain  an  action  for  discovery  alone  (see  also  Burstall  v.  Bey f us,  1884, 
26  Ch.  D.  35). 

An  application  to  strike  out  a  statement  of  claim  and  dismiss  the 
action  as  frivolous  and  vexatious  may  be  granted  even  after  the  delivery 
of  the  defence  and  reply  {Tucker  v.  Collinson,  1886,  34  W.  R.  354);  but 
where  such  an  application  was  made  after  the  action  had  been  set  down 
for  trial,  it  was  dismissed  on  the  ground  of  the  delay  {Cross  v.  Howe, 
1892,  62  L.  J.  Ch.  342 ;  Fletcher  v.  Bethom,  1893,  68  L.  T.  438). 

The  Court  has  also  jurisdiction  to  strike  out  a  defence,  and  give 
judgment  against  the  defendant,  for  failure  to  comply  with  an  order 
to  answer  interrogatories,  or  for  discovery  or  inspection  of  documents 
(Order  31,  r.  21 ;  Fisher  v.  Hughes,  1877,  25  W.  R.  528 ;  Haigh  v.  Haigh, 
1885, 31  Ch.  D.  478).  Where  a  defence  is  struck  out  for  non-compliance 
with  an  order,  the  defendant  is  in  default,  and  the  plaintiff  is  entitled  to 
take  such  steps  as  the  rules  prescribe  to  obtain  judgment  in  default  of 
defence  {In  re  Hartley,  1891, 91  L.  T.  J.  229).  In  the  Chancery  Division 
the  motion  to  strike  out  defence  and  the  motion  for  judgment  may  come 
on  together,  but  separate  orders  are  made  {Salomon  v.  Hole,  1905,  53 
W.  R.  588). 

Affidavits,  etc. — The  Court  may  order  to  be  struck  out  from  any 
affidavit  any  matter  which  is  scandalous,  and  may  order  the  costs  of 
any  application  to  strike  out  such  matter  to  be  paid  as  between 
solicitor  and  client  (Order  38,  r.  11).  The  Court  has  inherent  juris- 
diction to  prevent  any  of  its  proceedings  from  being  made  the  vehicle 
of  scandal  {In  re  Miller,  1885,  33  W.  R.  210),  and  to  order  an  affi- 
davit containing  scandalous  or  irrelevant  matter  to  be  taken  off  the 
file  {Osmaston  v.  Land  Financiers'  Association,  1878,  W.  N.  101 ; 
Kernick  v.  Kernick,  1864,  12  W.  R.  335;  Goddard  v.  Parr,  1855, 
3  W.  R.  633  ;  Hill  v.  Hart-Davis,  1884,  26  Ch.  D.  470 ;  Walker  v. 
Poole,  1882,  21  Ch.  D,  835),  or  scandalous  matter  to  be  expunged 
therefrom  {Warner  v.  Mosses,  1881,  W.  N.  69).  In  In  re  Miller,  supra, 
scandalous  matter  was  ordered  to  be  expunged  from  a  bill  of  costs  lodged 
in  the  Taxing- Master's  office. 

Order  31,  r.  7,  makes  provision  for  the  striking  out  of  interrogatories 
which  are  prolix,  oppressive,  unnecessary,  or  scandalous;  but  this  rule 
is  now  practically  superseded  by  rule  2  of  the  same  order,  which 
requires  the  particular  interrogatories  proposed  to  be  delivered,  to  be 
in  all  cases  submitted  to  the  Court  on  the  application  for  leave  to 
deliver  the  same. 

See  Stay  of  Proceedings. 


SUBMISSION  OF  THE  CLEEGY  669 

Sturgeon. — See  Fish,  Eoyal. 

Sturges-Bourne'S  Act.— The  popular  title  of  58  Geo.  iii. 
c.  69,  "  An  Act  for  the  Eegulation  of  Vestries ; "  so  called  by  being  carried 
through  Parliament  by  Mr.  W.  Sturges-Bourne,  M.P.  The  Act  provided 
for  due  notice  of  vestry  meetings  being  given  for  the  conduct  of  business 
at  such  meetings,  and  for  voting  by  the  inhabitants,  etc.  As  to  these 
matters  the  Act  (which  did  not  extend  to  the  City  of  London  or  to 
South wark)  has  been  repealed  by  the  Local  Government  Act,  1894. 
See  Vestry. 

Sublease  ;  Subdemise. — An  underlease  or  lease  granted 
by  a  lessee.  Between  the  original  lessor  and  the  sublessee  there  is 
no  privity  either  of  estate  or  of  contract,  and  for  these  reasons  no 
rights  or  liabilities  under  the  covenants  and  conditions  in  the  original 
lease. 

The  term  subdemise  is  used  more  frequently  than  the  term  under- 
lease in  mortgages  of  leaseholds ;  in  cases  where  the  covenants  contained 
in  the  lease  are  of  an  onerous  character,  it  is  usual  in  case  of  a  mortgage 
to  subdemise  instead  of  assigning  the  lease,  the  purpose  being  to  rid  the 
mortgagee  of  any  liability  under  the  covenants  of  the  lease.  The  system 
is  open  to  the  objection  that  it  leaves  the  legal  reversion  outstanding  in 
the  mortgagor,  and  though  justifiable  in  a  case  where  the  covenants 
impose  an  unusually  heavy  liability,  its  extensive  use  in  ordinary  cases 
is  of  questionable  utility.  Cp.  2  Key  and  Elph.,  8th  ed.,  76,  "  where  a 
lease  is  of  such  a  nature  as  to  render  it  undesirable  to  take  the  mortgage 
by  assignment,  it  can  scarcely  be  suitable  security  on  which  to  lend 
money  at  all."  For  the  non-performance  of  the  covenants  by  the  lessee- 
mortgagor  may  result  in  the  mortgagee's  security  being  forfeited.  See 
Underlease  ;  Mortgage  ;  Landlord  and  Tenant. 

Submission  of  the  Clergy.— The  law  by  which  our 
spiritual  Courts  are  governed  is  not  the  general  canon  law  of  Europe, 
but  one  based  upon  that  and  modified  from  time  to  time  not  only  by 
the  Church  authorities,  but  by  the  Sovereign  and  legislature  {R.  v.  Millis, 
1844,  10  CI.  &  Fin.  678;  8  E.  E.  844;  59  E.  E.  134,  per  Tindal,  C.J.). 
And  the  Act  of  Submission,  25  Hen.  vin.  (1533),  c.  19,  s.  4,  gave  an  appeal 
from  the  Archbishop's  Courts  to  the  King's  Court  of  Chancery  (now  the 
Judicial  Committee  of  the  Privy  Council),  and  expressly  provided  that 
no  canons  or  ordinances  should  be  enforced  here  by  order  of  Convocation 
which  were  repugnant  to  his  royal  prerogative,  or  the  customs  and  laws 
of  the  realm.  The  same  statute  following  upon  the  24  Hen.  vin.  (1532) 
c.  12,  abolished  appeals  to  Eome  in  any  matters  whatsoever  under 
penalty  of  prcemunire ;  whilst  the  last-mentioned  statute  enacted  that 
all  testamentary,  matrimonial,  and  divorce  causes,  rights  of  tithes,  obla- 
tions and  obventions  should  be  finally  determined  within  the  realm 
(ss.  1,  2).  In  the  year  1610,  too,  the  judges  formally  resolved — (1)  That 
Convocation  cannot  assemble  without  the  royal  assent;  (2)  that  the 
royal  licence  is  required  to  the  constitution  by  it  of  any  canons,  as  also 
(3)  to  the  execution  of  such  canons  as  it  does  conclude ;  and  (4)  no  canon 
can  be  executed  which  is  against  the  royal  prerogative,  or  the  common 
law,  statute  law,  and  customs  law  of  the  realm  {The  Case  of  Convocations^ 
1610, 12  Co.  Eep.  72 ;  77  E.  E.  1350).  The  practice,  accordingly,  still  is 
to  frame  all  canons  and  constitutions  in  order  to  be  laid  before  the  Crown, 


670  SUBMISSION,  REFEEENCE  UNDEE 

as  agreed  on  by  the  archbishop,  bishops,  and  clergy;  whereupon  the 
Crown  gives  effect  to  them  by  letters  patent  under  the  Great  Seal  of 
England.     But  synodical  acts  to  which  the  royal  licence  is  unnecessary 
become  authoritative  merely  from  the  sanction  of  the  metropolitan. 
See  Convocation  ;  Eoyal  Supremacy. 

Submission,  Reference  under. — See  Arbitration. 

Subornation. — See  Perjury. 

Subpoena,  Writ  of. — Origin. — The  origin  of  many  of  the 
writs  which  have  from  time  to  time  formed  part  of  the  machinery  of 
the  Courts  is  wrapped  in  complete  obscurity.  But  this  is  not  the  case 
with  regard  to  the  writ  of  subpoena,  for  Blackstone  in  his  Commentaries, 
bk.  iii.  fol.  51,  enters  fully  into  the  history  of  this  writ,  and  gives  a  most 
interesting  account  of  its  origin. 

In  these  early  times  (a.d,  1154-1272)  the  chief  judicial  employment  of 
the  Chancellor  must  have  been  in  devising  new  writs  directed  to  the  Courts 
of  common  law,  to  give  remedy  in  cases  where  none  was  before  administered. 
And  to  quicken  the  diligence  of  the  clerks  in  the  Chancery  who  were  too 
much  attached  to  ancient  precedents,  it  is  provided  by  Statute  Westminster 
the  Second,  13  Edw.  i.  c.  24,  that  "whensoever  from  thenceforth  in  one  case 
a  writ  shall  be  found  in  the  Chancery,  and  in  a  like  case  falling  under  the 
same  right,  and  requiring  like  remedy,  no  precedent  of  a  writ  can  be  produced, 
the  clerks  in  Chancery  shall  agree  in  forming  a  new  one,  and,  if  they  cannot 
agree,  it  shall  be  adjourned  to  the  next  Parliament,  where  a  writ  shall  be 
framed  by  consent  of  the  learned  in  the  law,  lest  it  happen  for  the  future 
that  the  Court  of  our  Lord  the  King  be  deficient  in  doing  justice  to  the 
suitors."  .  .  .  When,  about  the  end  of  the  reign  of  King  Edward  ill.,  uses  of 
land  were  introduced,  and  though  totally  discountenanced  by  the  Courts  of 
common  law,  were  considered  as  fiduciary  deposits  and  binding  in  conscience 
by  the  clergy,  the  separate  jurisdiction  of  the  Chancery  as  a  Court  of  equity 
began  to  be  established  ;  and  John  Waltham,  who  was  Bishop  of  Salisbury 
and  Chancellor  to  King  Eichard  ii.,  by  a  strained  interpretation  of  the  above 
Statute  of  Westminster  the  Second,  devised  the  writ  of  subpoena  returnable 
in  the  Court  of  Chancery  only,  to  make  the  feoffee  to  uses  accountable  to  his 
cestui-que  use ;  which  process  was  afterwards  extended  to  other  matters  wholly 
determinable  at  common  law,  upon  false  and  fictitious  suggestions. 

The  same  writer  tells  us  that — 

In  the  reigns  of  Henry  IV.  and  v.,  the  Commons  were  repeatedly  urgent 
to  have  the  writ  of  subpoena  entirely  suppressed,  as  being  a  novelty  devised 
by  the  subtilty  of  Chancellor  Waltham,  against  the  form  of  the  common 
law. 

So  far  from  being  suppressed,  the  writ  of  subpoena  manifested  various 
developments,  and  was  utilised  by  the  Courts  of  common  law,  as  well  as 
by  the  Court  of  Chancery,  to  serve  various  purposes.  The  original  sub- 
poena ad  respondendum  was  adopted  by  the  Court  of  Exchequer;  the 
subpoena  ad  testificandum,  and  subpoena  duces  tecum  became  the  ordinary 
processes  for  summoning  witnesses  in  all  the  Courts  of  common  law ; 
and  even  the  subpoena  to  pay  costs  was  made  use  of  in  actions  of 
ejectment.  The  other  forms,  viz.  the  subpoena  to  hear  judgment,  and 
to  name  a  solicitor,  and  to  show  cause,  were  confined  to  the  Court  of 
Chancery. 


SUBPCENA,  WKIT  OF  671 

Subpcena  ad  respondendum. — This  writ  was  issued  by  the  Court  of 
Chancery  immediately  after  the  filing  of  the  bill  of  complaint,  and 
commanded  the  defendant  within  eight  days  after  service,  laying  all 
other  matters  and  excuses  aside,  to  caupe  an  appearance  to  be  entered 
to  the  bill,  upon  pain  of  an  attachment  or  such  other  process  of  contempt 
as  the  Court  should  award.  This  writ  was  abolished  in  1852  by  15  &16 
Vict.  c.  86,  s.  2,  and  in  its  place  an  indorsement  was  prescribed  to  be 
made  upon  the  bill  of  complaint  calling  upon  the  defendants  to  appear 
to  it.  The  penal  clause  was  subsequently  altered  by  order  of  the  Court 
(Consolidated  Orders,  Order  9,  r.  2),  and,  as  amended,  informed  the 
defendant  that  if  he  failed  to  appear  the  plaintiff  might  enter  an  appear- 
ance for  him,  and  he  would  be  liable  to  be  arrested  and  imprisoned, 
and  to  have  a  decree  made  against  him  in  his  absence. 

In  the  Exchequer  of  Pleas  the  subpcena  ad  respondendum  commanded 
the  defendant  to  appear  before  the  barons  of  the  Exchequer  to  answer 
the  King  on  a  penalty  of  £100.  Notwithstanding  the  money  penalty, 
the  practice  was  to  attach  the  defendant  for  disobedience  of  the 
su^pcen/i. 

Subpoena  ad  test,  and  du,ces  tecum. — As  to  these  writs,  see  "Witness, 
Compelling  Attendance. 

Subpcena,  to  Hear  Judgment. — This  writ  was  analogous  to  the  modern 
notice  of  trial,  and  commanded  the  party  served  to  attend  at  the  hearing, 
"  then  and  there  to  receive  and  abide  by  such  judgment  and  decree  as 
shall  then  or  thereafter  be  made  and  pronounced,  upon  pain  of  judgment 
being  pronounced  against  you  by  default."  Service  on  the  party's 
solicitor  was  good  service  of  the  subpcena. 

Subpoena  for  Costs. — The  subpoena  for  costs  was  issued  after  taxation, 
upon  filing  the  Taxing-Master's  certificate.  It  commanded  the  party 
served  to  cause  to  be  paid  immediately  the  amount  certified  to  be  due 
"  under  pain  of  an  attachment  issuing  against  your  person,  and  such 
process  for  contempt  as  the  Court  shall  award  in  default  of  such  pay- 
ment." On  proof  by  affidavit  of  personal  service  of  the  sid)poena,  and  of 
non-payment,  the  party  prosecuting  the  order  for  costs  was  entitled 
without  further  order  to  issue  a  writ  of  attachment  against  the  defaulting 
party.  The  subpoena  for  costs  was  abolished  by  the  Rules  of  the  Supreme 
Court,  1875,  Order  47,  r.  2  (now  Order  43,  r.  7). 

SubpoevM  to  show  Cau^se. — This  writ  is  still  in  force.  There  being  no 
other  provision  made  by  the  Eules  of  the  Supreme  Court,  the  procedure 
under  this  writ  is  preserved  by  Order  72,  r.  2. 

When  a  decree  is  made  against  an  infant  defendant  it  usually  directs 
that  a  day  be  given  him  after  coming  of  age  to  show  cause  against  it. 
On  his  coming  of  age  the  plaintiff  issues  a  subpoena  to  show  cause  in 
form  prescribed  by  Consolidated  Orders,  Sched.  E,  No.  6.  This  writ 
merely  calls  upon  the  defendant  within  the  time  stated,  to  "  show  unto 
the  High  Court  of  Justice,  Chancery  Division,  good  cause  why  a  certain 
decree,  etc.,  should  not  be  binding  upon  you.  In  default  whereof,  such 
decree  will  stand  and  be  absolute  against  you ; "  Sidney  Smith's  ChaTicery 
Practice,  7th  ed.,  674 ;  Annual  Practice,  Form,  App.  J.,  No.  7b,  vol.  ii., 
part  i.).  This  is  a  judicial  writ,  and  therefore  requires  personal  service. 
If  personal  service  cannot  be  effected  an  application  should  be  made  ex 
parte  on  affidavit  to  direct  some  other  mode  of  service  (Daniell's  Chan- 
cery Practice,  7th  ed.,  131). 

Subpoena  to  Name  a  Solicitor. — This  writ  is  also  still  in  force  by 
virtue  of  Rules  of  the  Supreme  Court,  Order  72,  r.  2.     Where  a  solicitor 


672  SUBROGATION 

dies  or  is  struck  off  the  rolls,  and  the  party  whom  he  represented 
declines  or  neglects  to  appoint  a  new  solicitor  in  his  place,  and  to  give 
notice  of  such  appointment  to  the  opposite  party,  the  latter  may  sue 
out  a  subpoena,  calling  upon  the  party  who  had  ceased  to  be  represented 
to  name  a  new  solicitor.  The  writ  issues  as  a  matter  of  course  without 
order,  and  commands  the  party  served  that  within  eight  days  after 
service  of  the  writ  on  him,  exclusive  of  the  day  of  such  service,  he  do 
cause  an  appearance  to  be  entered,  and  do  name  a  solicitor  to  act  for 
him  in  the  cause.  The  writ  requires  personal  service  (see  Daniell's 
Chancery  Practice,  7th  ed.,  1705  ;  Daniell's  Chancery  Forms,  5th  ed., 
1041 ;  Annual  Practice,  Order  7,  r.  3,  note ;  Form  Consolidated  Orders, 
Sched.  E,  No.  5 ;  Annual  Practice,  vol.  ii.  Appendix  J.,  No.  7a). 

Duration  of  Subpoena. — Until  the  year  1908  a  subpoena  was  in  prac- 
tice held  to  be  in  force  only  for  the  sittings  or  assize  for  which  it  was 
issued.  It  might  be  issued  in  one  sittings  for  the  next,  but  if  the  case 
was  not  reached  during  the  sittings  for  which  it  was  issued  a  fresh 
subpoena  had  to  be  issued.  It  is  now  provided  by  Order  37,  r.  34a 
(Rules  of  the  Supreme  Court  (June),  1908),  that  any  subpoena,  other 
than  a  subpoena  issued  from  the  Crown  Office  or,  in  an  action  to  be  tried 
at  the  assizes,  shall  remain  in  force  from  the  date  of  issue  until  the  trial 
of  the  action  or  matter  in  which  it  is  issued. 

Subrog'Sl'tion. — The  doctrine  of  subrogation  in  relation  to 
insurance  is  founded  upon  the  principle  that  every  fire  or  marine 
insurance  policy,  or  other  contract  of  insurance  relating  to  property, 
is  a  contract  of  indemnity,  and  a  contract  of  indemnity  only;  and  is 
a  doctrine  in  favour  of  the  underwriters  or  insurer,  to  prevent  the 
assured  recovering  more  than  a  full  indemnity.  In  the  words  of  Lord 
Justice  Brett,  in  the  leading  case  of  Castellain  v.  Preston,  1883,  11 
Q.  B.  D.  380,  388,  the  principle  of  subrogation  is  that  "  as  between  the 
underwriter  and  the  assured,  the  underwriter  is  entitled  to  the  advan- 
tage of  every  right  of  the  assured,  whether  such  right  consists  in  contract, 
fulfilled  or  unfulfilled,  or  in  remedy  for  tort  capable  of  being  insisted  on 
or  already  insisted  on,  or  in  any  other  right,  whether  by  way  of  condition 
or  otherwise,  legal  or  equitable,  which  can  be  or  has  been  exercised  or 
has  accrued,  and  whether  such  right  could  or  could  not  be  enforced  by 
the  insurer  in  the  name  of  the  assured,  by  the  exercise  or  acquiring  of 
which  right  or  condition  the  loss  against  which  the  assured  is  insured, 
can  be  or  has  been  diminished."  This  view  of  the  law  was  adopted  in 
Assicurazioni  Generali  de  Trieste  v.  Empress  Assurance  Corporation,  Ltd., 
[1907]  2  K.  B.  814. 

Where  an  insurer  of  property  pays  compensation  in  respect  of  a  loss, 
he  is  entitled  to  all  the  rights  which  the  assured  may  have  against  third 
persons  in  respect  of  such  loss ;  and  for  the  purpose  of  enforcing  any  such 
right,  may  sue  in  the  name  of  the  assured  {Mason  v.  Sainsbury,  1782, 
2  Doug.  K.  B.  61 ;  Commercial  Union  v.  Lister,  1874,  L.  R.  9  Ch.  483 ; 
Defourcd  v.  Bishop,  1886,  18  Q.  B.  D.  373 ;  Bandal  v.  Cockran,  1748, 
1  Ves.  Sen.  98;  27  E.  R.  916);  and  he  is  not  only  entitled  to  recover 
from  the  assured  the  amount  of  any  compensation  or  value  of  any  benefit 
received  by  him  in  excess  of  his  actual  loss,  but  also  the  full  value  of 
any  rights  or  remedies  against  third  persons  which  have  been  renounced 
by  the  assured,  and  to  which,  but  for  such  renouncement,  the  insurer 
would  have  been  entitled  to  be  subrogated  (  West  of  England  Fire  Lnsur- 
ance  Co.  v.  Lsaacs,  [1897]  1  Q.  B.  226).     In  Castellain  v.  Preston,  1883, 


SUBSCKIBE  673 

11  Q.  B.  D.  380,  a  house  which  was  insured  against  fire  was  sold,  the 
contract  of  sale  containing  no  reference  to  the  insurance.  Before  the 
completion  of  the  sale  the  house  was  damaged  by  fire,  and  the  vendor 
received  compensation  from  the  insurer  The  sale  having  been  subse- 
quently completed,  and  the  full  amount  of  the  purchase-money  paid, 
without  any  deduction  in  respect  of  the  damage,  it  was  held  that  the 
insurer  was  entitled  to  recover  from  the  vendor  the  amount  which  had 
been  paid  to  him  under  the  policy  of  insurance.  So  where  a  lessor 
received  compensation  under  a  contract  of  insurance  in  respect  of 
damage  to  the  property;  and  the  lessee,  in  pursuance  of  a  covenant 
in  the  lease,  subsequently  made  good  the  damage,  it  was  held  that 
the  insurer  was  entitled  to  recover  from  the  lessor  the  value  of  the 
repairs  executed  by  the  lessee  (Darrell  v.  Tibhitts,  1880,  5  Q.  B.  D. 
560).  See  also  Phcenix  Assurance  Com'pany  v.  Spooner,  [1905]  2  K.  B. 
753. 

Where  a  payment  is  made  by  an  insurer  in  good  faith  in  satisfaction 
of  a  claim  made  by  the  assured,  and  the  insurer  sues  a  third  person  in 
the  name  of  the  assured,  it  is  no  ground  of  defence  that  the  payment 
was  not  within  the  term  of  the  policy  of  insurance  {King  v.  Victoria 
Insurance  Co.,  [1896]  App.  Cas.  250).  But  an  insurer  has  no  right  of 
action  in  his  own  name  against  third  persons  in  virtue  of  the  doctrine 
of  subrogation.  He  can  only  sue  in  the  name  of  the  assured,  and  subject 
to  all  defences  which  would  be  available  against  the  assured  {ibid. ; 
London  Assu7'ance  Co.  v.  Sainsbury,  1783,  3  Doug.  K.  B.  245 ;  Simpson. 
v.  Thomson,  1877,  3  App.  Cas.  279). 

The  right  of  the  insurer  to  recover  from  the  assured  the  amount  of 
any  compensation  received  by  him  from  other  sources  in  respect  of  the 
loss  insured  against,  does  not  extend  to  cases  where  the  compensation  ia 
in  the  nature  of  a  voluntary  gift,  and  is  not  paid  by  reason  of  any  obli- 
gation  on  the  part  of  the  payer  to  make  compensation  {Bumurd  v. 
Rodocanachi,  1882,  7  App.  Cas.  333).  And  the  insurer  is  only  entitled 
to  be  subrogated  to  the  rights  of  the  assured  in  respect  of  the  thing  to- 
which  the  contract  of  insurance  relates.  Thus,  in  The  Sea  Insurance  Co, 
v.  Hadden,  1884,  13  Q.  B.  D.  706,  where  the  underwriters  had  paid  aa 
for  the  total  loss  of  a  vessel,  it  was  held  that,  though  they  were  entitled 
to  every  benefit  accruing  to  the  assured  from  the  ownership  of  the 
insured  vessel,  the  freight  to  be  earned  under  a  charter-party  was  not 
incidental  to  such  ownership,  and  they  therefore  had  no  claim  in 
respect  of  damages  recovered  by  the  assured  on  account  of  the  losa 
of  such  freight. 

The  doctrine  of  subrogation  does  not  apply  to  contracts  of  life 
assurance,  or  contracts  of  assurance  against  personal  accidents. 

See  Bunyon's  Laio  of  Fire  Insurance,  1906  ed. ;  Chalmers  and  Owen's 
Marine  Insurant  Act,  1906,  1907  ed. 

Subscribe. — To  "subscribe"  means  primarily  " to  write  under 
something,"  and  if  in  the  particular  matter  the  "  subscription  "  is  required 
to  be  made  in  a  particular  manner,  the  prescribed  manner  must  be 
observed  (see  per  Brett,  M.R,  in  A.-G.  v.  Bradlaugh,  1885,  14  Q.  B.  D. 
686);  but  the  word  is  frequently  used  "merely  to  describe  a  signing 
of  the  name,  without  reference  to  the  part  of  the  paper  on  which  the 
name  is  written"  {per  Lord  Campbell,  C.J.,  in  Roberts  v.  Phillips,  1855, 
4  El.  &  Bl.  456). 

To  "  subscribe "  for  shares  in  a  company  would  appear  to  mean  an 
VOL.  XIII.  43 


674  SUBSEQUENT,  CONDITIONS 

agreement  to  take  the  shares  by  means  of  a  formal  application  or  other- 
wise— at  all  events  an  agreement  under  which  there  would  be  a  liability 
to  pay ;  but  the  term  may  be  controlled  by  the  context  {Arnison  v. 
Smith,  1889,  41  Ch.  D.,  at  p.  357). 

"  Subscriber  "  to  a  railway  undertaking,  see  Burke  v.  Zechmere,  1871, 
L.  R  6  Q.  B.  297. 

Subsequent,  Conditions. — See  Conditions. 

Subsidy. — In  the  old  system  of  taxation  the  word  subsidy  had 
three  different  meanings.  First,  it  meant  the  customs,  export  and  im- 
port duties,  of  tunnage  and  poundage,  which  was  indirect  taxation 
granted  by  Parliament,  and  distinct  from  the  hereditary  revenues  of  the 
Crown.  Secondly,  it  meant  in  a  more  general  sense  any  parliamentary 
grant  in  aid  of  the  ordinary  revenues  of  the  Crown,  whether  it  was 
raised  by  direct  or  indirect  taxation.  Thirdly,  it  meant  in  the  sixteenth 
and  seventeenth  centuries,  a  direct  taxation  imposed  by  Parliament 
of  2s.  8d.  in  the  £  on  movables,  and  4s.  in  the  £  on  land.  A  grant  of 
"  one  subsidy "  meant  this,  and,  if  necessary,  several  subsidies  were 
granted  together.  This  was  the  ordinary  form  of  taxation  until  the 
latter  part  of  the  seventeenth  century,  when  it  ceased,  having  become 
unremunerative. 

[Authorities. — Dowell,  History  of  Taxation,  2nd  ed.,  238-240  ;  Anson, 
Law  and  Custom  of  the  Constitution,  2nd  ed.,  pp.  316,  317.] 

Subsoil. — Primd  facie  subsoil  includes  all  that  is  beneath  the 
surface  of  land  (Cox  v.  Glue,  1848,  5  C.  B,  549) ;  it  is  a  wider  term  than 
"  minerals,"  for  "  minerals  "  are  only  a  part  of  the  subsoil  imbedded  in 
and  intermingled  with  the  ordinary  soil  (Atkinson  v.  King,  1878,  2  L.  R. 
Ir.  339),  so  that  a  grant  of  land  reserving  "  coal  and  coal  mines  "  will 
only  reserve  the  coal  veins  or  seams,  and  not  the  other  strata  {Ramsay 
V.  Blair,  1876,  1  App.  Cas.  705). 

Substituted  Service. — The  machinery  by  which,  where 
prompt  personal  service  cannot  be  effected,  leave  may  be  obtained  for 
service  by  post;  or  upon  some  person  known  to  be  in  communication 
with  the  party  to  be  served  ;  or  by  advertisement,  or  otherwise.  See 
Service  and  Delivery. 

Substitution. — See  Instead  of;  In  Lieu  of. 

Subterranean  Water.—"  The  right  to  the  enjoyment  of  a 
natural  stream  of  water  on  the  surface,  ex  jure  naturce,  belongs  to  the  pro- 
prietor of  the  adjoining  lands  as  a  natural  incident  to  the  soil  itself  (see 
Watercourse).  .  .  .  He  has  the  right  to  have  it  come  to  him  in  its  natural 
state,  in  flow,  quantity,  and  quality,  and  to  go  from  him  without  obstruc- 
tion. .  .  .  His  right  in  no  way  depends  upon  prescription  or  the  presumed 
grant  of  his  neighbour  "  (j)er  Lord  Wensleydale  in  Chesemore  v.  Richards, 
1859,  7  H.  L.  Cas.  382;  11  E.  R.  140).  The  law  is  the  same  where 
water  flows  in  a  known  and  defined  channel  (see  Defined  and  Known 
Channel)  underground  {ihid.,  per  Lord  Chelmsford,  p.  374) ;  but  it  is 
otherwise  with  respect  to  water  which  merely  percolates  through  the 
strata  in  no  known  channels.  A  landlord  has  the  right  to  divert  or 
appropriate  such  water  within  his  own  land,  so  as  to  deprive  his  neigh- 


SUDAN— ANGLO-EGYPTIAN  675 

bour  of  it ;  and  this  is  so,  quite  irrespective  of  the  motive  of  the  land- 
owner {Bradford  {Mayor  of)  \.  Pickles,  [1895]  App.  Cas.  587;  Chesemore 
V.  Richards,  supra).  But  although  a  landowner  has  an  unlimited  right 
to  appropriate  subterranean  water  percolating  through  the  strata  in  no 
defined  channel,  yet  the  law  will  not  permit  him  to  contaminate  the 
water  he  may  not  use,  and  which  therefore  flows  on  to  and  under  adjoin- 
ing land  {Ballard  v.  Tomlinson,  1885,. 29  Ch.  D.  115);  nor,  it  seems, 
will  he  be  permitted  to  abstract  it  if  in  so  doing  he  abstracts  or  diverts 
water  flowing  in  a  defined  channel  {Grand  Junction  Canal  Co.  v.  Shugar, 
1871,  L.  R  6  Ch.  483;  distinguished  in  English  v.  Metropolitan  Water 
Board,  [1907]  1  K.  B.  588).  See  KivERS  Pollution;  Watercourse; 
Waterway. 

Subtraction. — A  species  of  injury  affecting  a  man's  real 
property,  committed  by  withholding  the  performance  of  any  suit,  duty, 
custom,  or  other  service  (3  Steph.  Com.,  443). 

Succession. — See  Distribution,  Statutes  of;  Inheritance; 
Eeal  Property,  Descent  of.     See,  further.  Will,  Judicial  Glossary. 

Succession  Duties. — See  Death  Duties. 

Successively. — See  Will,  Judicial  Glossary. 

Successors. — See  Will,  Judicial  Glossary. 

Such. — "Such  as  shall  survive"  in  a  devise  to  a  class  construed 
as  meaning  "  the  others,  or  others  of  them  "  {In  re  Tharp's  Estate,  1863, 
33  L.  J.  Ch.  59). 

"  Such  bill "  in  sec.  38  of  the  Solicitors  Act,  1843,  6  &  7  Vict.  c.  73, 
means  a  bill  as  between  solicitor  and  client ;  it  refers  back  to  the  bill 
of  costs  referred  to  in  the  prior  section. 

"  Such  Order  "  in  sec.  15  of  the  Judgments  Act,  1838, 1  &  2  Vict.  c.  10, 
means  the  order  nisi,  and  not  the  order  absolute  {Jeffryes  v.  Reynolds, 
52  L.  J.  Q.  B.  55).  (See  cases  on  the  word  in  various  other  collocations 
collected  in  Stroud,  Jud.  Diet.) 

Sudan— Anglo- Egyptian. 

Constitution  of  GtOvernment,  Legislation,  and  Judicl^ 
Organisation. 

I.  Constitution  of  Government. 

From  its  conquest  by  Mohammed  Ali  in  1819  to  the  capture  of 
Khartoum  by  the  Mahdi  in  1885  the  Sudan  was  a  province  of  Egypt, 
and  as  such  was  subject  to  the  Capitulations. 

The  present  Government  of  the  Sudan  is  constituted  under  the 
Agreement  of  the  19th  January  1899  between  the  British  and  Egyptian 
Governments. 

The  principal  provisions  of  this  Agreement  are  as  follows : — 

The  British  and  Egyptian  flags  shall  be  used  together  throughout 
the  Sudan  (Art.  II.). 

The  supreme  military  and  civil  command  shall  be  vested  in  the 


676  SUDAN— ANGLO-EGYPTIAN 

Governor-General  of  the  Sudan.  He  shall  be  appointed  by  Khedivial 
decree  on  the  recommendation  of  the  British  Government,  and  shall  be 
removed  only  by  Khedivial  decree  with  the  consent  of  the  British 
Government  (Art.  III.). 

Laws  may  be  made  by  proclamation  of  the  Governor-General.  All 
such  laws  shall  forthwith  be  notified  to  the  British  Consul-General  in 
Cairo  and  to  the  President  of  the  Council  of  Ministers  of  His  Highness 
the  Khedive  (Art.  IV.). 

No  Egyptian  enactment  to  be  made  subsequently  to  the  date  of  the 
Agreement  shall  apply  to  the  Sudan,  unless  so  applied  by  proclamation 
of  the  Governor- General  (Art.  V.). 

In  the  definition  by  proclamation  of  the  conditions  under  which 
Europeans  of  whatever  nationality  shall  be  at  liberty  to  trade  with  or 
reside  in  or  hold  property  within  the  Sudan,  no  special  privileges  shall 
be  accorded  to  the  subjects  of  any  one  or  more  Power  (Art.  VI.). 

No  import  duties  shall  be  payable  on  goods  coming  from  Egyptian 
territory.  Import  duties  on  goods  entering  the  Red  Sea  Littoral  shall 
not  exceed  the  corresponding  duties  on  goods  entering  Egypt  from 
abroad  (Art.  VII.). 

The  jurisdiction  of  the  Mixed  Tribunals  shall  not  extend  to  or  be 
recognised  in  the  Sudan  (Art.  VIII.). 

By  the  Agreement  between  the  British  and  Egyptian  Governments 
of  the  10th  July  1899  the  town  of  Suakin,  which  by  the  Agreement  of 
the  19th  January  1899  had  been  left  subject  to  the  jurisdiction  of  the 
Egyptian  Mixed  Tribunal,  was  brought  under  the  same  legal  and 
administrative  system  as  the  rest  of  the  Sudan. 

Politically,  perhaps,  the  most  important  effect  of  these  agreements  is 
the  exclusion  from  the  Sudan  of  the  Capitulations  and  of  the  extra- 
territorial rights  possessed  by  the  subjects  of  European  Powers  in 
Egypt. 

II.  Legislation. 

(a)  Criminal  and  Civil  Law. — The  Penal  Code  (1899)  and  the 
Criminal  Procedure  Code  (1899)  are  largely  based  on  the  Indian  Penal 
and  Criminal  Procedure  Codes. 

Civil  Courts  of  Justice  were  created  by  the  Civil  Justice  Ordinance 
(1900).  No  code  of  civil  substantive  law  has  yet  been  issued ;  but 
sec.  3  of  the  Civil  Justice  Ordinance  provides  for  the  recognition  of 
customary  law,  if  applicable  to  the  parties  and  not  contrary  to  good 
conscience,  in  matters  of  succession  and  other  matters  of  personal 
status ;  and  sec.  4  directs  that  in  cases  not  provided  for  by  sec.  3  or  by 
any  other  law  for  the  time  being  in  force  the  Court  shall  act  according 
to  justice,  equity,  and  good  conscience. 

The  Egyptian  Judgments  Ordinances,  1901  and  1904,  lay  down  the 
conditions  under  which  judgments  of  the  Egyptian  Courts  are  recognised 
and  may  be  made  executory  by  the  Sudan  Courts. 

(h)  Land. — The  Title  of  Land  Ordinance,  1899,  the  Khartoum,  etc.. 
Town  Land  Ordinance,  1899,  and  other  similar  Town  Land  Ordinances 
provided  for  the  appointment  of  special  commissions  to  adjudicate  upon 
land  disputes,  which  owing  to  the  disturbance  caused  by  the  Mahdi's 
rebellion,  were  very  numerous,  and  to  register  titles  to  land. 

The  Land  Acquisition  Ordinance,  1903,  follows  the  same  general 
lines  as  the  Indian  Acts  for  the  expropriation  of  land  for  public 
purposes. 


SUDAN— ANGLO-EGYPTIAN  677 

Other  Ordinances  relating  to  land  are  the  Demarcation  and  Survey 
Ordinances,  1905  and  1907,  and  the  Land  Settlement  Ordinance,  1905, 
which  provides  for  the  settlement  of  rights  claimed  by  private  indi- 
viduals over  waste  lands,  and  enables  lands  over  which  natives  possess 
rights  not  amounting  to  full  ownership  to  be  sold  by  the  Government, 
the  owners  of  such  rights  being  compensated  either  in  land  or  in  money. 

(c)  Taxation. — The  principal  ordinances  relating  to  taxation  are  the 
Land  and  Date  Tax  Ordinances,  1890  to  1905  ;  Taxation  (House  Tax) 
Ordinances,  1899  to  1905 ;  Taxation  of  Animals,  1901 ;  Tribute  Ordin- 
ance, 1901 ;  Eoyalties  on  Gum  Ordinances,  1899  to  1904 ;  Public  Ferries 
Ordinance,  1900. 

{d)  Alcoholic  Liquor. — The  greater  part  of  the  Sudan  lies  within 
the  zone  in  which  under  the  Brussels  Convention  the  import  of 
spirituous  liquors  is  prohibited,  except  in  limited  quantities  for  the 
use  of  Europeans.  The  subject  is  dealt  with  by  the  Licence  Liquor 
Ordinance,  1899,  and  the  Natives  Liquor  Ordinances,  1903  and  1907. 

{e)  Miscellaneous. — Under  the  Preservation  of  Wild  Animals  Ordin- 
ance, 1903,  certain  rare  or  useful  wild  animals  are  absolutely  protected ; 
a  licence  has  to  be  taken  out  for  game  shooting,  and  a  limit  is  placed  on 
the  number  of  most  species  which  may  be  shot  by  a  licence-holder. 
A  large  sanctuary,  in  which  shooting  is  prohibited,  was  established. 
Speaking  generally  no  restriction  is  placed  on  hunting  by  natives, 
provided  they  do  not  use  firearms. 

The  following  Ordinances  may  also  be  mentioned: — The  Contra- 
band Goods  Ordinance,  1901 ;  the  Cattle  Plague  Ordinance,  1901 ;  the 
Municipal  Councils  Ordinance,  1901;  the  Railway  Ordinance,  1904; 
the  Auctioneers  and  Pedlars  Ordinance,  1905 ;  Prevention  of  Cruelty 
to  Animals  Ordinance,  1905;  Vagabonds  Ordinance,  1905;  the  Anti- 
quities Ordinance,  1905 ;  the  Steamers  Ordinance,  1906 ;  the  Harbours 
and  Shipping  Ordinance,  1906 ;  the  Sudan  Non-Mohammedan  Marriage 
Ordinance,  1906;  the  Arms  Ordinance,  1907;  the  Deeds  Registration 
Ordinance,  1907 ;  the  Hashish  Ordinance,  1907 ;  the  Locusts  Destruc- 
tion Ordinance,  1907  ;  the  Quarantine  Ordinance,  1908 ;  the  Sudan 
Explosives  Ordinance,  1908 ;  Workmen's  Compensation  (Government 
Contracts)  Ordinance,  1908  ;  the  Apprenticeship  Ordinance,  1908 ;  and 
the  Police  Ordinance,  1908. 

III.  Judicial  Organisation. 

(a)  Criminal  Courts. — The  Criminal  Procedure  Code  established 
three  classes  of  criminal  Courts  in  every  province,  namely,  Governor's 
Courts,  Minor  District  Courts,  and  Magistrates'  Courts. 

The  Governor's  Court  is  composed  of  the  Governor  of  the  Province 
or  his  representatives  and  two  other  magistrates.  When  the  services 
of  a  judge  are  available  the  Court  is  presided  over  by  a  judge  in  the 
place  of  the  Governor.     The  Governor's  Court  has  general  competence. 

A  Minor  District  Court  is  comprised  of  three  magistrates,  and  has 
limited  competence.  The  maximum  punishment  it  can  award  is  seven 
years'  imprisonment. 

Magistrates  sittting  singly  have  powers  similar  to,  but  more  limited 
than,  magistrates  in  India. 

Sentences  passed  by  a  Governor's  Court  are  submitted  to  the 
Governor-General  for  confirmation.  Those  of  Minor  District  Courts 
and  of  magistrates  sitting  singly  are  either  submitted  to  the  Provincial 
Governor  for  confirmation  or  are  appealable  to  him. 


678  SUE  AND  LABOUE  CLAUSE 

The  Governor-General  has  in  all  cases  revising  powers  similar  to 
those  of  the  Indian  High  Courts.  In  the  exercise  of  his  powers  of 
confirmation  and  revision  he  is  assisted  by  the  Legal  Secretary  to  the 
Government. 

(h)  Civil  Courts. — The  Civil  Justice  Ordinance  established  in  every 
province  Courts  of  general  competence  for  the  disposal  of  civil  cases. 
These  Courts  are  presided  over  by  a  judge  or  in  the  less  settled  provinces 
by  the  Governor  or  his  representative.  There  are  also  subordinate 
Courts,  appeals  from  which  lie  to  the  Province  Court. 

The  decisions  of  the  Province  Courts  are  appealable  before  the 
Court  of  the  Judicial  Commissioner,  to  whom  all  other  civil  Courts  are 
subordinated. 

The  substitution  of  a  Bench  of  Judges  of  Appeal  for  the  Court  of 
the  Judicial  Commissioner  is  under  consideration. 

(c)  Mohammedan  Law  Courts  {Mehkema  Sharia).  —  Cases  between 
Mohammedans  relating  to  succession,  wills,  gifts,  marriage,  divorce, 
family  relations  and  the  constitution  of  charitable  endowments  (wakf) 
are  tried  in  accordance  with  Mohammedan  Law  by  special  tribunals 
(Mehkema  Sharia),  the  judges  of  which  are  Mohammedan  sheikhs 
appointed  by  the  Governor-General. 

These  Courts  are  governed  by  the  Mohammedan  Law  Courts  Ordin- 
ance (1902),  and  the  Kules  issued  under  that  Ordinance. 

Cases  of  conflict  of  jurisdiction  between  the  Mohammedan  Courts 
and  civil  Courts  are  determined  by  a  special  tribunal  composed  of  the 
Legal  Secretary  to  the  Government,  the  Judicial  Commissioner,  and 
the  Grand  Kadi  of  the  Mohammedan  Courts. 

The  law  administered  is  in  general  that  of  the  Hanafi  School  of 
Mohammedan  Law. 

[Authorities. — The  Sudan  Gazette  and  the  Sudan  Ordinances.] 

Sue  and  Labour  Clause. — See  Marine  Insurance. 

Suez  Canal. — See  Canals,  Interoceanic. 

Sufferance,  Estate  at. — "A  Tenant  at  Sufferance  is 
he  that  at  first  came  in  by  lawful  demise,  and  after  his  estate  is  ended 
continueth  in  possession  and  wrongfully  holdeth  over  "  (Co.  Litt.  57b). 
In  such  a  case  the  possession  lawful  in  its  inception  is  continued  after 
it  has  ceased  to  be  lawful,  as,  e.g.  where  a  tenant  pur  autre  vie  continues 
in  possession  after  the  death  of  the  cestui  que  vie  without  the  consent  of 
the  party  next  entitled  (Allen  v.  Rill,  32  Eliz.  Cro.  Eliz.  238  ;  78  E.  E. 
493),  or  where  any  tenant  continues  in  possession  without  his  landlord's 
consent  after  his  term  has  expired,  or  after  he  has  surrendered.  If  the 
reversioner  allows  a  tenant  under  a  sublease  to  hold  over  he  becomes  a 
tenant  by  sufferance  (see  SimJcin  v.  Ashurst,  1834,  1  Cr.  M.  &  E.  261). 
A  tenancy  at  will  is  different  from  that  by  sufferance,  for  a  tenant  at 
will  is  always  (until  notice)  in  of  right  but  a  tenant  by  sufferance  holds 
over  by  wrong  (Co.  Litt.  57  h).  On  the  determination  of  the  tenancy 
at  will  by  any  means  if  the  tenant  remains  in  possession  he  is  at  suffer- 
ance (Turner  v.  Doe  d.  Bennett,  1842,  9  M.  &  W.  643).  An  agreement 
to  hold  at  sufferance  does  not  create  any  tenancy  (Barry  v.  Goodman, 
1837,  2  M.  &  W.  768).  The  fact,  however,  that  the  original  entry  was 
lawful  prevents  the  rightful  owner  from  treating  the  tenant  as  a  trespasser 
until  actual  entry  has  been  made  by  him  (the  rightful  owner)  on  the  land. 


SUFFICIENT  679 

But  this  does  not  apply  to  a  case  in  which  the  party  entitled  is  the  Crown, 
for  "  no  man  can  be  tenant  at  sufferance  against  the  King  to  whom  no 
laches  or  neglect  in  not  entering  and  ousting  the  tenant  is  imputed  by 
law;"  but  his  tenant  so  holding  over  is  considered  an  absolute  intruder 
against  the  King  (Co.  Litt.  loc  cit. ;  2  Black.  150).  A  tenant  at  suffer- 
ance has  strictly  no  estate,  and  therefore  cannot  accept  a  release  in 
enlargement  of  his  tenancy  {Allen  v.  Hill,  uhi  supra).  But  he  may 
maintain  trespass  against  a  wrong-doer  {Graham  v.  Peat,  1801,  1  East, 
244 ;  6  K.  R.  268).  He  may  be  sued  for  use  and  occupation  {Bayley 
V.  Bradley,  1848,  5  C.  B.  396),  but  as  he  does  not  hold  at  a  rent  certain, 
is  not  liable  to  distress  {Jenner  v.  Clegg,  1832,  1  Moo.  &  Rob.  213  ; 
42  R.  R.  778). 

At  common  law  the  landlord's  remedy,  if  he  be  a  subject,  is  there- 
fore by  entry  or  action  to  recover  the  land,  which  may  be  maintained 
without  any  previous  demand  of  possession  or  notice  to  quit  {Doe  d. 
Zeeson  v.  Sayer,  1811,  3  Camp.  8),  and  to  make  the  tenant  account  for 
the  profits  of  the  land.  Two  statutes  of  Geo.  ii.  have,  however,  given 
the  landlord  greater  power  and  increased  the  liability  of  a  tenant  wrong- 
fully holding  over  after  he  has  given  notice  to  quit.  See  Double  Rent 
AND  Double  Value. 

The  consent  by  the  reversioner  necessary  to  prevent  the  tenant  at 
sufferance  from  being  such  may  be  implied  as  well  as  express.  And 
such  a  consent  is  invariably  implied  by  the  acceptance  of  rent  from 
the  tenant  after  his  term  has  expired,  and  the  tenancy  will  then  become 
a  yearly  tenancy.    See  Estates  ;  Landlord  and  Tenant. 

Sufferance  Wharf  .—See  Customs,  Vol.  IV.  p.  287. 

SufTicient.  —  Cause.  —  By  sec.  7,  subs.  3,  of  the  Bankruptcy 
Act,  1883,  the  Court  may  dismiss  a  bankruptcy  petition  if  it  is  not 
satisfied  with  the  proof  of  the  petitioner's  debt,  or  of  the  act  of  bank- 
ruptcy, or  of  the  service  of  the  petition,  or  is  satisfied  by  the  debtor 
that  he  is  able  to  pay  his  debts,  "  or  that  for  other  sufficient  cause  no 
order  ought  to  be  made."  The  fact  that  the  debtor  has,  before  presenta- 
tion of  the  petition,  entered  into  an  advantageous  arrangement  with  his 
creditors,  is  not  a  "  sufficient  cause  "  for  dismissing  the  petition  {Ex  parte 
Dixon,  1884,  13  Q.  B.  D.  118  ;  Ex  parte  Oram,  1885,  15  Q.  B.  D.  399); 
nor  is  the  fact  that  the  debtor  may  be  entitled  to  money  as  the  result 
of  an  action  {In  re  Whitley,  1891,  8  Mor.  Bky.  149) ;  nor  that  the 
debtor's  principal  asset  will  be  destroyed  if  a  receiving  order  is  made, 
unless  it  is  shown  to  the  satisfaction  of  the  Court  that  the  asset  in 
question  is,  in  fact,  the  sole  asset  {In  re  Birkin,  1896,  3  Manson,  291); 
nor  that  the  costs  of  the  bankruptcy  proceedings  will  swallow  up  all 
the  assets  {In  re  Jubb,  [1897]  1  Q.  B.  641);  but  where  the  Court  is 
clearly  convinced  from  all  the  circumstances  of  the  case  that  there 
cannot  be  any  assets,  or  a  prospect  of  any  coming  into  existence,  and 
that  if  a  receiving  order  is  made  the  only  effect  will  be  a  mere  waste  of 
money  in  costs,  the  Court  has  a  discretion,  and  will  be  justified  in 
exercising  that  discretion  by  refusing  to  make  a  receiving  order  {per 
Lord  Esher,  M.R.,  in  In  re  Belts,  [1897]  1  Q.  B.  50  ;  In  re  Somers,  1897, 
4  Manson,  227).     See  also  In  re  Shaw,  1900,  83  L.  T.  487. 

"  Sufficient  cause  "  for  non-payment  of  the  rate  within  sec.  256  of 
the  Public  Health  Act,  1875  (see  Sheffield  Waterworks  Co.  v.  Sheffield 
Corporation,  1885,  55  L.  J.  M.  C.  40 ;   54  L.  T.  179 ;  50  J.  P.  6). 


680 


SUFFKAGAN 


"  Sufficient  cause  "  under  sec.  305  of  the  Act  (ibid.).  The  justices 
cannot  review  the  order  if  correct  in  itself.  The  appeal  is  to  the  Local 
Government  Board  {Robinson  v.  Sunderland,  [1899]  1  Q.  B.  751). 

Eemoval  from  the  Register  of  Trade  Marks,  etc.,  "  of  any  entry  made 
without  sufficient  cause  "  (see  Batt  v.  Dunnett,  [1899]  A.  C.  428). 

Evidence. — The  probate  of  a  will  is,  by  sec.  64  of  20  &  21  Vict.  c.  77, 
in  the  cases  there  specified,  made  "  sufficient "  evidence  of  such  will, 
and  of  its  validity  and  contents,  notwithstanding  that  it  may  not  have 
been  proved  in  solemn  form,  unless  the  party  to  whom  notice  has  been 
given  that  such  probate  is  to  be  used  in  order  to  establish  a  devise  or 
other  testamentary  disposition  for  affecting  realty  gives  a  counter-notice 
that  he  disputes  the  validity  of  such  devise  or  other  testamentary  dis- 
position. This  merely  means  that  if  a  counter-notice  is  not  given,  the 
probate,  without  more,  will  be  sufficient  evidence  to  go  to  the  jury  of 
a  devise  or  realty,  not  that  the  other  party  will  be  precluded  from 
showing  by  evidence  that  the  will  is  invalid  or  that  the  testator  was  not 
competent  (Barraclough  v.  Greenhoivgh,  1867,  L.  R  2  Q.  B.  612 ;  and  see 
Analysis).  As  to  the  difference  between  "  sufficient  "  and  "  conclusive  " 
evidence,  see  Garhutt  v.  Durham  Joint  Committee,  [1904]  2  K.  B.  514. 

Pasture. — In  Robertson  v.  Hartopp,  1889,  43  Ch.  D.  484,  it  was  held 
that  the  question  whether  sufficient  pasture  (Stat,  of  Merton,  20  Hen.  ill. 
c.  4)  is  left  for  the  commoners  by  a  lord  when  making  an  inclosure,  is 
to  be  determined  according  to  the  aggregate  number  of  animals  which 
the  commoners  are  entitled  to  turn  out,  not  according  to  the  average 
number  which  have  in  fact  been  turned  out  by  them.  See  Common  ; 
Inclosure  Acts. 

Privy. — Sec.  25  of  the  Public  Health  Act,  1875,  which  requires  a 
house  newly  erected  or  rebuilt  to  be  provided  with  a  "  sufficient  water- 
closet,  earthcloset  or  privy,"  does  not  necessitate  the  provision  of  such  a 
convenience  for  each  new  or  rebuilt  house  exclusively ;  the  section  is 
complied  with  if  it  is  found  that  one  convenience  is  "  sufficient "  for 
two  houses  (Glutton  Union  v.  Pointing,  1879,  4  Q.  B.  D.  340).  See 
also   Wood  V.   Widnes,  [1898]  1  Q.  B."  463. 

Beaton. — "  Sufficient  reason,"  within  sec.  4  of  the  Arbitration  Act, 
1889  (see  Arbitration). 

Water. — A  clause  in  a  charter-party  providing  that  the  ship  is  "  to 
discharge  in  a  dock  as  ordered  on  arriving,  if  sufficient  water,  or  so  near 
thereto  as  she  may  safely  get  always  afloat,"  only  binds  the  ship  to 
discharge  in  the  dock  named,  if  there  is  sufficient  water  there  at  the 
time  when  the  order  is  given  (Allen  v.  Coltart,  1883,  11  Q.  B.  D.,  782). 

Suffragan.— See  Bishop. 

Sugar  Bounties. — The  Brussels  Convention,  1902. 
of  Signatory  Powers.    Most  Favoured  Nation  Treaties. 


List 


TABLE 

1.  Suppression  of  Bounties 

2.  Supervision  of  Factories 

3.  Limitation  of  Surtax 

4.  Countervailing  Duty 
6.  Non-bounty-fed  Sugar 

6.  Exemptions 

7.  Establishment     of     Permanent 

Commission    .... 

8.  British  Self-Governing  Colonies 

and     British     East     Indies 
exempted       .... 


OF 

681 
681 
681 
681 
682 
682 

682 


683 


CONTENTS. 

9.  Non-adherent  States 

10.  Operation  and  Duration  of  Con 

vention .... 

11.  Application  of  Convention 

12.  Ratification  of  Convention 

13.  List  of  Signatory  Powers 

14.  Final  Protocol ... 

15.  Most  Favoured  Nation  Treaties 


683 

683 
684 
684 
684 
685 
685 


SUGAK  BOUNTIES  681 

The  Convention,  which  was  signed  at  Brussels  on  March  5,  1902, 
and  which  the  House  of  Commons  authorised  His  Majesty's  Government 
to  ratify  on  behalf  of  Great  Britain  and  the  Colonial  dependencies  of 
the  British  Crown,  consists  of  twelve  Articles  and  a  supplementary 
and  binding  Protocol.  Several  changes,  which  will  be  noted  hereunder, 
occurred  in  1907  and  1908. 

Articles. 

I.  The  High  Contracting  Parties  undertake  to  suppress,  from  the 
date  of  the  coming  into  force  of  the  present  Convention,  the  direct  and 
indirect  bounties  by  which  the  production  or  export  of  sugar  might 
benefit,  and  not  to  establish  bounties  of  such  a  kind  during  the  whole 
duration  of  the  Convention.  For  the  application  of  this  provision,  sugar 
products,  such  as  preserves,  chocolates,  biscuits,  condensed  milk,  and 
all  other  analogous  products  containing,  in  a  notable  proportion,  sugar 
artificially  incorporated,  are  assimilated  to  sugar. 

The  preceding  paragraph  applies  to  all  advantages  resulting  directly 
or  indirectly  for  the  different  categories  of  producers  from  the  fiscal 
legislation  of  the  States,  including — 

(a)  The  direct  bounties  granted  to  exports ; 

(b)  The  direct  bounties  granted  to  production ; 

(c)  Total  or  partial  exemptions  from  taxation  granted  for  a  part  of 
the  manufactured  output ; 

{(l)  Advantages  derived  from  excess  of  yield ; 
(c)  Advantages  derived  from  exaggeration  of  the  drawback ; 
(/)  Advantages  derived  from  any  surtax  in  excess  of  the  rate  fixed 
by  Article  III. 

II.  The  High  Contracting  Parties  engage  to  place  in  bond,  under  the 
permanent  supervision,  both  by  day  and  by  night,  of  the  Revenue  officers, 
sugar  factories  and  sugar  refineries,  as  well  as  factories  for  the  extraction 
of  sugar  from  molasses. 

For  this  purpose,  factories  shall  be  so  arranged  as  to  give  every 
guarantee  against  any  surreptitious  carrying  away  of  sugar,  and  the 
said  officers  shall  have  power  to  enter  all  parts  of  the  factories. 

Controlling  books  shall  be  kept  in  connection  with  one  or  more  of 
the  processes  of  manufacture,  and  finished  sugars  shall  be  placed  in 
special  storehouses  giving  all  proper  guarantees  of  security. 

III.  The  High  Contracting  Parties  undertake  to  limit  the  surtax  to 
a  maximum  of  6  fr.  per  100  kilog.  for  refined  sugar  and  assimilable 
sugars,  and  to  a  maximum  of  5  fr.  50  c.  for  other  sugars.  The  surtax 
is  the  difference  between  the  rate  of  duty  or  taxation  to  which  foreign 
sugars  are  subject  and  that  imposed  on  the  national  product. 

The  provisions  of  this  Article  do  not  apply  to  the  rates  of  import 
duty  in  the  case  of  countries  that  do  not  produce  sugar,  nor  do  they  apply 
to  the  by-products  of  sugar  manufacture  and  refining. 

IV.  The  High  Contracting  Parties  agree  to  impose  a  special  duty  on 
the  importation  into  their  respective  territories  of  sugars  from  countries 
that  grant  bounties  either  on  production  or  export.  [Note. — England 
was  exempted  from  this  condition  by  an  additional  Act  of  1907.] 

This  duty  shall  not  be  less  than  the  amount  of  the  bounties,  direct 
or  indirect,  granted  in  the  country  of  origin.    The  High  Contracting 


682  ^    SUGAE  BOUNTIES 

Parties  reserve  to  themselves,  as  far  as  each  of  them  is  concerned,  the 
option  to  prohibit  the  importation  of  bountied  sugars. 

In  order  to  calculate  the  amount  of  the  advantage  eventually  derived 
from  the  surtax  specified  in  paragraph  (/)  of  Article  I.,  the  figure  fixed 
by  Article  III.  is  deducted  from  the  amount  of  this  surtax ;  the  half  of 
the  difference  is  considered  to  represent  the  bounty,  and  the  Permanent 
Commission  instituted  by  Article  VII.  will  have  the  right,  on  the  demand 
of  a  Contracting  Party,  to  revise  the  figure  thus  fixed. 

V.  The  High  Contracting  Parties  mutually  undertake  to  admit  at 
the  lowest  rate  of  import  duty  sugars  of  any  of  the  contracting  countries 
or  of  any  Colonies  or  Possessions  belonging  to  them  that  do  not  grant 
bounties  and  to  which  the  obligations  imposed  by  Article  VIII.  apply. 

Cane  and  beet  sugars  shall  not  be  subjected  to  different  rates  of 
duty. 

VI.  Spain,  Italy,  and  Sweden  are  exempt  from  the  obligations  imposed 
by  Articles  I.,  II.,  and  III.,  so  long  as  they  do  not  export  sugar.  [Note. — 
On  March  26,  1908,  a  special  Sitting  of  the  Permanent  Commission  was 
convoked  at  the  request  of  the  Italian  Government,  who  desired  per- 
mission for  Italy  to  export  up  to  15,000  tons  of  sugar  per  annum  without 
being  subject  to  any  obligations.  This  request  was  refused  by  the 
Powers.] 

These  States  engage  to  adapt  their  legislation  in  the  matter  of  sugar 
to  the  provisions  of  the  Convention  within  a  year — or  earlier  if  possible 
— from  the  time  when  the  Permanent  Commission  notifies  that  the 
above-mentioned  condition  has  ceased  to  exist. 

VII.  The  High  Contracting  Parties  agree  to  establish  a  Permanent 
Commission  charged  with  watching  the  execution  of  the  provisions  of 
the  present  Convention. 

This  Commission  shall  be  composed  of  Delegates  of  the  different 
Contracting  Powers ;  a  permanent  Bureau  will  be  connected  with  it. 
The  Commission  will  elect  its  President ;  it  will  sit  at  Brussels,  and  will 
assemble  at  the  summons  of  the  President. 

The  duties  of  the  Delegates  will  be — 

(a)  To  ascertain  whether  in  the  Contracting  States  any  direct  or 
indirect  bounty  is  granted  on  the  production  or  export  of  sugars. 

(b)  To  ascertain  whether  the  States  referred  to  in  Article  VI.  continue 
to  conform  to  the  special  condition  laid  down  in  that  Article. 

(c)  To  ascertain  whether  any  bounties  exist  in  the  non-Signatory 
States,  and  to  estimate  the  amount  for  the  purposes  of  Article  IV. 

(d)  To  pronounce  an  opinion  on  contested  points. 

(e)  To  consider  requests  for  admission  to  the  Union  made  by  States 
not  having  taken  part  in  the  present  Convention. 

The  Permanent  Bureau  shall  collect,  translate,  arrange,  and  publish 
information  of  all  kinds  respecting  legislation  on  and  statistics  of  sugar, 
not  only  in  contracting  countries,  but  in  all  other  countries  as  well. 

In  order  to  insure  the  execution  of  the  preceding  provisions,  the  High 
Contracting  Parties  shall  transmit,  through  the  diplomatic  channel  to 
the  Belgian  Government,  which  shall  forward  them  to  the  Commission, 
the  Laws,  Orders,  and  Kegulations  on  the  taxation  of  sugar  which  are 
or  may  be  in  force  in  their  respective  countries,  as  well  as  statistical 
information  relative  to  the  object  of  the  present  Convention. 


SUGAR  BOUNTIES  683 

Each  of  the  High  Contracting  Parties  may  be  represented  on  the 
Commission  by  a  Delegate,  or  by  a  Delegate  and  Assistant  Delegates. 

Austria  and  Hungary  shall  be  considered  separately  as  Contracting 
Parties. 

The  first  meeting  of  the  Commission  shall  be  held  in  Brussels,  under 
the  auspices  of  the  Belgian  Government,  at  least  three  months  before  the 
coming  into  force  of  the  present  Convention. 

The  Commission  shall  have  only  the  duty  of  examination  and  report. 
It  shall  draw  up  a  report  on  all  questions  submitted  to  it,  and  forward 
the  same  to  the  Belgian  Government,  which  shall  communicate  it  to 
the  Powers  interested,  and,  at  the  request  of  any  one  of  the  High 
Contracting  Parties,  shall  convoke  a  Conference  which  shall  take  such 
decisions  or  measures  as  circumstances  demand. 

The  examinations  and  valuations  referred  to  in  paragraphs  (b)  and  (c) 
will,  however,  be  binding  on  the  Contracting  Powers ;  they  will  be  deter- 
mined by  a  majority  vote — each  Contracting  Party  having  one  vote — 
and  they  will  take  effect  in  two  months'  time  at  the  latest.  Should  one 
of  the  Contracting  Parties  consider  it  necessary  to  appeal  against  a  deci- 
sion of  the  Commission,  the  said  Party  must,  within  eight  days  of  the 
receipt  of  the  said  decision,  require  a  fresh  meeting  of  the  Commission, 
which  will  hold  a  special  meeting  and  will  pronounce  its  final  decision 
within  one  month  of  the  date  of  the  appeal.  The  new  decision  shall 
take  effect,  at  latest,  within  two  months  of  its  promulgation.  The  same 
course  will  be  followed  with  regard  to  the  consideration  of  demands  for 
admission  provided  for  in  paragraph  (e). 

The  expenses  incurred  on  account  of  the  establishment  and  working 
of  the  l*ermanent  Bureau  and  of  the  Commission — excepting  the  salaries 
or  expenses  of  the  Delegates,  who  will  be  paid  by  their  respective 
countries — shall  be  borne  by  all  the  Contracting  States,  and  shall  be 
divided  among  them  in  a  manner  to  be  determined  by  the  Commission. 

VIII.  The  High  Contracting  Parties  undertake  for  themselves  and 
for  their  Colonies  or  Possessions,  an  exception  being  made  in  the  case  of 
the  self-governing  Colonies  of  Great  Britain  and  the  British  East  Indies, 
to  take  the  necessary  measures  to  prevent  bounty-fed  sugars  which  have 
passed  in  transit  through  a  contracting  country  from  enjoying  the  advan- 
tages of  the  Convention  on  the  market  to  which  it  is  being  forwarded. 
The  Permanent  Commission  will  make  the  necessary  proposals  with 
regard  to  this  provision. 

IX.  States  which  are  not  Parties  to  the  present  Convention  will  be 
admitted  to  adhere  to  it  at  their  request,  and  after  approval  by  the 
Permanent  Commission.     [Russia  adhered  (on  terms)  in  1907.] 

The  request  shall  be  addressed  through  the  diplomatic  channel  to  the 
Belgian  Government,  who  will  undertake,  should  occasion  arise,  to  notify 
the  adhesion  to  all  the  other  Governments.  It  will  entail  agreement  to 
all  the  obligations  and  admission  to  all  the  advantages  stipulated  by  the 
present  Convention,  and  will  produce  its  effects  from  the  1st  September 
following  the  dispatch  of  the  notification  by  the  Belgian  Government 
to  the  other  Contracting  States. 

X.  The  present  Convention  will  come  into  force  on  the  Ist  September 
1903. 

It  will  remain  in  force  for  five  years  from  that  date,  and  in  the  case 


684  SUGAE  BOUNTIES 

of  any  of  the  High  Contracting  Parties  not  having  notified  twelve 
months  before  the  expiration  of  the  said  period  of  five  years  its  inten- 
tion of  ceasing  to  abide  by  it,  it  will  continue  to  remain  in  force  for 
a  year,  and  so  on  from  year  to  year. 

In  the  event  of  one  of  the  Contracting  Parties  denouncing  the  Con- 
vention, such  denunciation  will  only  have  effect  on  the  Party  in  question ; 
the  other  Parties  will  retain,  until  the  31st  October  of  the  year  in  which 
the  denunciation  is  made,  the  right  of  notifying  their  intention  of  with- 
drawing on  the  1st  September  of  the  succeeding  year.  If  one  of  these 
latter  Powers  desires  to  withdraw,  the  Belgian  Government  will  summon 
a  Conference  at  Brussels  within  three  months  to  decide  upon  the  course 
to  be  taken.  [Note. — On  August  28, 1907,  an  additional  Act  was  passed 
and  assented  to  by  all  the  Contracting  Powers  for  an  extension  to 
September  1,  1913,  on  certain  special  conditions,  the  chief  of  which  was 
that  Great  Britain  should,  after  September  1,  1908,  be  exempted  from 
the  obligation  to  prohibit  or  levy  countervailing  duties  upon  bountied 
sugar.] 

XI.  The  provisions  of  the  present  Convention  will  apply  to  the 
oversea  provinces.  Colonies,  and  foreign  Possessions  of  the  High  Con- 
tracting Parties.  The  British  and  Dutch  Colonies  and  Possessions  are 
excepted,  save  as  regards  the  provisions  forming  the  subject  of  Articles 
V.  and  VIII. 

The  position  of  the  British  and  Dutch  Colonies  and  Possessions  is, 
moreover,  regulated  by  the  declarations  inserted  in  the  Final  Protocols. 

XII.  The  fulfilment  of  the  mutual  engagements  contained  in  the 
present  Convention  is  subordinated  as  far  as  it  is  necessary  to  the 
completion  of  the  formalities  and  requirements  established  by  the 
Constitutional  laws  of  each  of  the  Contracting  Parties. 

The  present  Convention  shall  be  ratified,  and  the  ratifications  shall 
be  deposited  at  the  Ministry  of  Foreign  Affairs  at  Brussels  on  the  1st 
February  1903,  or  earlier  if  possible. 

It  is  agreed  that  the  present  Convention  shall  only  become  binding 
if  it  is  ratified  at  least  by  those  of  the  Contracting  Powers  who  are  not 
included  in  the  exceptional  provision  of  Article  VI.  Should  one  or 
several  of  these  Powers  not  have  deposited  their  ratifications  by  the  date 
mentioned,  the  Belgian  Government  shall  immediately  take  steps  to 
obtain  a  decision  on  the  part  of  the  other  Signatory  Powers  as  to  whether 
the  present  Convention  shall  come  into  force  among  themselves. 

The  States  who  are  signatories  of  the  Convention  are  Germany^ 
Austro-Hungary,  Belgium,  Spain,  France,  Great  Britain,  Italy,  the 
Netherlands,  Sweden  and  Norway. 

[Russia  came  in  during  the  year  1907,  and  she  was  authorised  to 
export,  under  her  present  fiscal  conditions  as  to  her  produce,  300,000 
tons  from  September  1,  1907,  to  August  31,  1909,  and  thence  forward 
yearly  up  to  200,000  tons,  the  question  to  be  reconsidered  by  the  Com- 
mission in  1912.  Russia  thus  becomes  full  Party  to  the  original  Conven- 
tion subject  to  the  conditions  laid  down  in  1907.  The  effect  of  the  change 
is  that  Russian  sugar  exported  after  September  1,  1908,  is  regarded  as 
unbountied  sugar  for  the  purpose  of  the  certificates  of  origin  to  be  issued 
with  refined  sugar  when  exported  by  Great  Britain  to  other  Contracting 
States  in  accordance  with  the  engagement  contained  in  the  additional 
Act.] 


SUICIDE  .         685 

In  a  Final  Protocol,  the  High  Contracting  Parties  reserve  individually 
the  right  of  proposing  an  increase  in  the  surtax  to  the  Permanent  Com- 
mission which  will  adjudicate  thereon.  Great  Britain  undertakes  to 
grant  no  bounty,  direct  or  indirect,  to  sugars  of  the  Crown  Colonies 
during  the  duration  of  the  Convention,  and  to  grant  no  preference  to 
colonial  sugar. 

The  countries  with  which  Great  Britain  has  treaties  with  a  most 
favoured  nation  clause  are:  Argentine  Eepublic,  Bolivia,  Bulgaria, 
Colombia,  Denmark,  Greece,  Honduras,  Japan,  Mexico,  Liberia,  Paraguay, 
Persia,  Roumania,  Russia,  Salvador,  Servia,  Switzerland,  United  States, 
Uruguay,  Venezuela,  and  Zanzibar. 

In  1880  the  law  officers  of  the  Crown  expressed  the  opinion  that  to 
impose  a  countervailing  duty  in  order  to  neutralise  a  foreign  bounty  on 
sugar  would  be  contrary  to  the  most  favoured  nation  clause  in  existing 
commercial  treaties.  Russia,  adopting  that  view,  has  protested  that  the 
Convention  is  a  breach  of  the  Treaty  of  Commerce  and  Navigation 
concluded  between  Great  Britain  and  Russia  in  1859. 

For  recent  changes  see  Parliamentary  Papers  (Commercial),  No.  1 
(1908),  Cd.  3877,  February  1908  (Russia),  and  No.  3  (1908),  Cd.  4077, 
May  1908  (Italy). 

FORM. 

Certificate  of  Origin  to  accompany  Refined  Sugar  exported 
FROM  THE  United  Kingdom  to  Contracting  States. 

I,  ,  Collector  of  Customs  at  the  Port  of  , 

hereby  certify  that  the  sugar  of  which  particulars  are  stated  in  the 
schedule  annexed  hereto  and  destined  for  exportation  to  was 

refined  in  the  United  Kingdom  from  raw  sugar  originating  exclusively 
in  Contracting  States  or  Countries  which  had  not  been  declared  by 
the  Permanent  Commission  established  by  the  International  Sugar 
Convention  to  give  bounties  on  the  production  or  exportation  of 
sugar. 

Dated  this  day  of  19     . 

(Signed) 
Schedule. 


Suicide. — l.  At  common  law  a  person  who  kills  himself  deliber- 
ately is  felo  de  se.  On  a  verdict  by  a  coroner's  jury  to  that  effect  the  goods 
and  chattels,  but  not  the  lands  of  the  deceased,  were  forfeited  to  the  Crown 
(3  Co.  Inst.,  54),  and  the  corpse  was,  under  the  coroner's  warrant,  buried 
at  midnight  in  a  highway  (usually  at  cross-roads),  with  a  stake  through 
it  and  without  Christian  rites.  The  forfeitures  were  abolished  in  1870 
(33  &  24  Vict.  c.  23,  s.  1),  and  the  mode  of  burial  altered  in  1823 
(4  Geo.  IV.  c.  52),  and  again  in  1882  (45  &  46  Vict.  c.  19).  The  corpse 
may  now  under  the  coroner's  warrant  be  buried  in  the  churchyard  or 
burial-ground  of  the  parish  or  place  in  which  the  deceased  would,  but 


686  SUI  JUKIS 

for  the  verdict,  be  lawfully  buried  by  the  laws  or  custom  of  England. 
The  interment  is  effected  in  accordance  with  the  Burial  Act,  1880,  43 
&  44  Vict.  c.  41;  45  &  46  Vict.  c.  19,  s.  3);  and  while  the  ordinary 
Anglican  burial  service  may  not  be  used  (see  Rubrics  and  45  &  46  Vict, 
c.  19,  s.  4),  it  would  seem  that  a  special  service  may  be  employed  (43  &  44 
Vict.  c.  41,  s.  13 ;  see  Jervis  on  Coroners,  6th  ed.,  1898,  p.  142). 

2.  These  changes  in  the  law  merely  affect  the  rights  of  heirs  and 
next-of-kin  and  the  burial  of  the  deceased,  and  do  not  change  the  law 
as  to  felo  de  se  considered  as  a  crime. 

As  such  it  thus  defined :  "  It  is  a  felony  for  a  man  to  kill  himself 
under  circumstances  which  would  constitute  murder  if  he  had  killed 
another  person,  even  where  in  endeavouring  to  kill  another  he  kills 
himself  (Hawk.  F.  C,  bk.  i.  ch.  9,  s.  4 ;  Steph.  Dig.  Cr.  Law,  6th  ed., 
art.  248). 

Any  person  who  aids,  abets,  counsels,  or  procures  another  thus  to 
kill  himself  is  triable  as  a  principal  for  murder  under  24  &  25  Vict, 
c.  94,  s.  1 ;  and  the  same  is  true  where  two  agree  to  commit  suicide 
together  and  one  succeeds  (B.  v.  Alison,  1838,  8  Ch.  P.  418).  The  old 
difficulty  supposed  to  exist  as  to  trying  accessories  before  the  principal 
was  convicted  was  by  that  Act  removed  {B.  v.  Dyson,  1823,  Euss.  &  Ey. 
523 ;  B.  v.  Jessop,  1887,  16  Cox  C.  C.  204 ;  In  re  Abbott,  1903,  67  J.  P. 
151).  By  a  bill  introduced  in  the  session  of  1908  (No.  316),  it  was 
proposed  to  make  it  a  misdemeanor  to  counsel,  procure,  aid,  or  abet 
another  to  commit  suicide. 

An  unsuccessful  attempt  to  commit  suicide  is  not  punishable  as  an 
attempt  to  commit  murder  within  24  &  25  Vict.  c.  100,  s.  15,  but  is  an 
indictable  misdemeanor  triable  at  Quarter  Sessions  and  punishable  by 
fine  and  imprisonment  (B.  v.  Burgess,  1862,  32  L.  J.  M.  C.  55.  As  to 
the  Indian  law  on  this  subject,  see  Mayne,  Ind.  Cr.  Law,  1896,  p.  625). 
By  the  bill  above  mentioned  it  was  proposed  to  provide  that  such 
attempt  should  not  be  an  attempt  to  commit  felony  within  the  Hard 
Labour  Act,  1822,  3  Geo.  iv.  c.  114. 

On  proof  that  the  person  said  to  have  committed  felo  de  se,  was  in 
a  state  of  permanent  or  temporary  insanity,  the  coroner's  inquest  may 
return  a  verdict  of  suicide  whilst  of  unsound  mind,  and  the  petty  jury 
a  verdict  of  guilty  but  insane,  which  ousts  the  application  of  the  Act  of 
1882.  Coroner's  juries  usually  treat  self-destruction  as  per  se  evidence 
of  insanity,  unless  the  deceased  has  first  killed  other  people. 

3.  In  civil  proceedings  the  question  whether  a  death  is  due  to  sui- 
cide, and  by  a  sane  or  insane  person,  arises  frequently  on  policies  of 
life  insurance.  In  deference  to  the  policy  of  the  law  such  contracts  are 
held  to  exclude  the  risk  of  felo  de  se  (Amicable  Life  Co.  v.  Bolland,  1830, 
2  Dow  &  C.  1 ;  6  E.  E.  630) ;  but  unless  otherwise  stipulated  do  include 
the  risk  of  self-destruction  during  insanity  {Horn  v.  Anglo-Australian 
Insurance  Co.  1861,  30  L.  J.  Ch.  511).  The  decisions  on  the  subject  are 
collected  in  Porter  on  Insurance,  5th  ed.,  148,  and  Wood  Eenton  on 
Lunacy,  [1897]  66. 

Sui  juris  (Of  his  own  right). — A  person  who  can  validly  con- 
tract and  bind  himself  by  legal  obligation,  uncontrolled  by  any  other 
person,  is  said  to  be  sui  juris ;  in  other  words,  a  person  not  subject  to 
any  incapacity,  such  as  non-age,  or  insanity. 

Suit. — "Suit"  is  a  term  of  wider  signification  than  action;  it  may 


SUM  687 

include  proceedings  on  a  petition  {In  re  Wallis's  Trusts,  1888,  23  L.  R. 
Ir.  7). 

Sui't  of  Court. — Suit  of  Court  is  the  attendance  due,  as  an 
incident  of  tenure,  by  the  tenant  to  the  lord.  It  is  one  of  the  services 
of  the  freehold  tenants,  as  well  as  the  copyhold  and  customary  tenants 
of  the  manor,  and  consists  in  attending  the  Court  when  held.  The 
attendance  may  be  commuted  by  money  payment ;  and,  in  the  case  of 
freehold  tenants,  suit  may  be  done  by  attorney  as  well  as  personally. 
A  copyholder,  however,  may  not  do  suit  by  attorney,  for  the  Statute  of 
Merton  (20  Hen.  ill.  c.  10)  conferred  this  right  on  freeholders  only. 
Joint-tenants  or  coparceners  reckon  as  one  tenant,  and  one  of  such 
joint-tenants  only  need  do  suit.  As  regards  lands  held  by  a  married 
woman,  the  husband  is  the  proper  person  to  do  a  suit  of  Court,  except 
in  the  case  of  women  married  after  the  Married  Women's  Property  Act, 
1882,  or  whose  title  to  copyhold  accrues  thereafter,  who,  it  would  seem, 
may  themselves  do  suit  of  Court  if  required  (see  Elton,  Copyholds,  2nd 
ed.,  p.  198). 

The  tenant  must  attend,  or  make  a  sufficient  excuse  (called  "  making 
essoign  ")  for  his  absence,  e.g.  illness  or  the  like,  and  in  default  of  this 
he  may  be  fined  for  not  attending ;  the  fine  is  called  an  amercement, 
and  is  recovered  by  action  only,  and  not,  except  under  special  custom, 
by  distress.  The  lord  is,  however,  entitled  to  distrain  on  the  cattle  or 
other  goods  of  the  tenant  as  a  remedy  against  neglect  to  do  suit.  But 
there  is  no  power  of  sale  incident  to  the  distress,  it  being  but  a  pledge 
for  the  performance  of  the  services  due.  On  the  other,  the  distress  is 
unlimited,  and  is  called  for  that  reason  distress  infinite.  See  Copy- 
hold. 

Su  it — Si  I  VCr . — A  small  rent  which  was  paid  by  the  freeholders 
in  certain  manors  to  be  excused  attendance  at  their  lord's  Court. 

Sum. — Adjudged, — The  expression  "sum  adjudged,"  as  used  in 
sec.  25  of  the  Cruelty  to  Animals  Act,  1849,  12  &  13  Vict.  c.  92,  "  more 
properly  relates  to  the  sum  which  the  party  is  to  pay  by  way  of  penalty 
or  compensation,  than  to  costs  "  {per  Crompton,  J.,  in  R.  v.  Warwickshire 
Justices,  1856,  6  El.  &  Bl.  841). 

Certain. — The  sum  payable  by  a  bill  or  note  is  a  "sum  certain" 
within  the  meaning  of  the  Bills  of  Exchange  Act,  1882,  although  it  is 
required  to  be  paid — (a)  with  interest ;  (6)  by  stated  instalments ; 
(c)  by  stated  instalments,  with  a  provision  that  upon  default  in  pay- 
ment of  any  instalment  the  whole  shall  become  due;  {d)  according  to 
an  indicated  rate  of  exchange,  or  according  to  a  rate  of  exchange  to  be 
ascertained  as  directed  by  the  bill  or  note  (ss.  9,  89).  See  Larnberton  v. 
Aitken,  [1900]  2  F.  189. 

Claimed. — The  "  sum  claimed  "  in  sec.  460  of  the  Merchant  Shipping 
Act,  1854 — "amount  claimed"  in  the  corresponding  section  of  the 
Merchant  Shipping  Act,  1894,  s.  547 — refers  to  the  claim  made  ante- 
cedently to  any  proceedings  {The  William  and  John,  1863,  32  L.  J.  P.  M. 
&  Ad.  102). 

Periodically  PayaUe. — Where  an  instrument  which  is  a  security  for 
sums  of  money  contemplates  a  weekly  payment  for  an  indefinite  period, 
the  amount  of  the  weekly  payment  is  the  "  sum  periodically  payable  " 
under  the  head  "  bond,  covenant,  or  instrument "  in  the  first  schedule  to 


688  SUMAGE 

the  Stamp  Act,  1891  {Clifford  v.  InlaTid  Revenue  Commissioners,  [1896] 
2  Q.  B.  187). 

Recovered. — "Sum  .  .  .  sought  to  be  recovered"  read  as  meaning 
"debt  sought  to  be  recovered"  {Joule  v.  Taylor,  1851,  21  L.  J.  Ex.  31 ; 
7  Ex.  58). 

Suma.g'e  {Sumagium). — This  word  denoted  a  horse-load,  and  is  so 
used  in  sec.  14  of  the  Charter  of  the  Forest.  It  also  denoted  the  toll  paid 
for  carriage  on  horseback  {Cowel). 

Summary  Conviction  is  a  determination  of  a  Court  of 
Summary  Jurisdiction  {q.v.),  adjudging  that  the  person  therein  named 
has  committed  an  offence  punishable  summarily  under  a  statute  or  under 
a  by-law  or  regulation  lawfully  made  under  statutory  authority  (see 
Paley  on  Summaiy  Convictions,  8th  ed.,  184). 

It  differs  from  an  order,  which  is  made  by  such  a  Court  on  a 
complaint,  and  not  in  a  Criminal  Cause  or  Matter. 

The  forms  to  be  used  are  scheduled  to  the  Summary  Jurisdiction 
Rules,  1886  (and  see  Oke,  Magisterial  Formulist,  and  Paley  on  Summary 
Convictions,  8  th  ed.).  Since  1848  it  has  not  been  necessary  to  set  out 
the  evidence  on  the  face  of  the  conviction,  but  it  is  desirable,  if  not 
essential,  to  state  with  particularity  the  essential  facts  constituting  the 
ofifence  {R.  v.  M'Kenzie,  [1892]  2  Q.  B.  519 ;  Ux  parte  Wilkins,  1895, 
64  L.  J.  N.  C.  221 ;  Smith  v.  Moody,  [1904]  1  K.  B.  56).  See  Conviction  ; 
Summary  Jurisdiction. 

The  conviction  is  recorded  by  being  drawn  in  the  prescribed  form  on 
paper  or  (if  required  for  return  to  a  certiorari)  on  parchment.  It  states 
the  offence  in  the  words  of  the  Act  creating  it,  the  adjudication,  including 
the  penalty  and  the  costs,  if  any,  and  the  date,  and  must  be  authenticated 
by  the  signature  and  seal  of  as  many  of  the  justices  present  as  are  neces- 
sary to  form  a  Court  to  deal  with  the  offence  (60  J.  P.  498)  and  it  must 
be  transmitted  to  the  clerk  of  the  peace  (11  &  12  Vict.  c.  43,  ss.  14,  18 ; 
42  &  43  Vict.  c.  49,  s.  39  (1) ;  see  Paley  {I.e.),  p.  318). 

The  conviction,  if  defective  in  form,  may  be  amended  on  appeal  or 
certiorari,  if  the  evidence  taken  justified  a  conviction  in  proper  form 
(12  &  13  Vict.  c.  45,  s.  7 ;  see  Archbold,  Quarter  Sessions,  6th  ed. ;  Short 
and  Mellor,  Cr.  Fr.,  2nd  ed.,  62). 

Unless  reversed  or  set  aside  on  Appeal  to  Quarter  Sessions,  or  on 
case  stated  to  the  High  Court,  or  by  Certiorari,  the  conviction  is  binding 
and  conclusive  on  the  parties  to  it,  and  cannot  be  disregarded  as  ultra 
vires,  except  possibly  where  it  is  on  the  face  of  it  obviously  and  clearly 
illegal.  Nor  can  the  justice  be  sued  for  illegality  until  the  conviction  is 
quashed  or  reversed  on  appeal  (11  &  12  Vict.  c.  44,  s.  2);  and  justices 
who  grant  distress  warrants  on  illegal  convictions  by  other  justices  are 
not  liable  to  action  by  reason  of  defects  in  the  conviction  (s.  3). 

Summary  convictions  are  proved — (1)  By  a  register  kept  by  the 
justices'  clerk,  or  an  extract  thereof,  which  is  primd  facie  evidence  of 
the  matter  before  justices  acting  for  the  district  for  which  the  con- 
victing justices  acted  (42  &  43  Vict.  c.  49,  s.  22;  Commissioner  of 
Metropolitan  Police  v.  Donovan,  [1903]  1  K.  B.  895);  (2)  by  minutes 
or  memoranda  kept  under  sec.  14  of  the  Summary  Jurisdiction  Act, 
1848,  11  &  12  Vict.  c.  43,  which  are  primd  facie  evidence  of  the  matter 
therein  stated  for  the  information  of  the  Court  to  which  they  belong 
(S.  C.) ;  (3)  by  a  certified  copy  of  the  conviction,  with  evidence  to  iden- 


SUMMARY  JUDGMENT  UNDER  ORDER  14 


689 


tify  the  person  convicted  (34  &  35  Vict.  e.  112,  s.  18) ;  (4)  by  production 
of  the  original  conviction  from  the  proper  custody. 

The  first  method  is  not  permitted  in  proving  a  previous  conviction 
where  it  affects  the  sentence  on  a  subsequent  conviction  (42  &  43  Vict. 
c.  49,  8.  22  (2);  but  is  permitted  in  proceedings  under  sec.  2  of  the 
Inebriates  Act,  1898,  61  &  62  Vict.  c.  60;  Commissioner  of  Metropolitan 
Police  V.  Donovan,  ubi  supra  ;  and  see  Previous  Conviction). 

Summary  Judgment  under  Order  14. 

TABLE  OF  CONTENTS. 


I.  General  Obseevations    . 

Statistics  .... 
History  of  Order  14 

II.  Scope     and     Limitation     of 
Oeder  14    . 

Generally 

Time  for  making  Applica- 


tion 


689 

689 
689 

690 
690 

691 


III. 


IV. 


Plaintiff's    Right    to    Jddg- 
MENT 691 

Affidavit  in  Support         .     692 

Defendant's    Right    to     De- 
fend      692 

How  established  .  .  692 
"By  Affidavit"  .  .  692 
Offering  to  bring  Money 

into  Court  .  .  .692 
General  Extent  of  Proof 

required        .        .        .     693 


Defence   as    to    Part    of 

Claim    . 
Question  of  Law 
Question  of  Fact    to   be 

tried 
Counterclaim    . 
Preliminary  Objection 

V.  Powers   of  the  Judge  under 
Oeder  14     .        .        . 

To  Amend 
To  give  Directions   . 
To  order  Summary  Trial 
To  remit  to  County  Court 
To  refer  the  Action  . 
To  give  Relief  from  For 

feiture  ... 
Practice    under    Money 

lenders  Act  . 
Costs        ... 
Appeals    . 


693 
694 

694 
694 
695 


695 

695 
696 
69& 
69& 
69e 

697 

697 
69a 
69& 


I.  General  Observations. 

Statistics. — Before  dealing  with  the  origin  and  effect  of  procedure 
under  Order  14  it  may  be  interesting  to  show  the  extent  to  which  that 
summary  process  is  resorted  to  by  litigants.  In  1905  the  number  of 
summonses  issued  for  judgment  under  Order  14  was  13,541.  Of  these, 
final  judgment  was  given  in  7973  actions,  leave  to  defend  in  2962,. 
and  the  remaining  2606  were  not  accounted  for.  As  to  the  last  item 
the  presumption  is  that  the  mere  issue  of  the  summons  brought  the 
defendant  to  payment  or  arrangement.  We  may  therefore  assume  that 
this  process  was  effectively  used  to  secure  summary  recovery  of  the  debt 
sued  for  in  no  less  than  10,623  actions  in  the  High  Court.  The  total 
amount  recovered  in  the  7973  cases  in  which  summary  judgment  was- 
given  was  £1,761,132.  This  sum,  however,  though  considerable,  does 
not  wholly  represent  the  result  of  these  cases.  The  returns  do  not  take 
account  of  the  number  of  cases  in  which  summary  judgment  is  given  for 
recovery  of  land  under  clause  (/)  of  Order  3,  r.  6  (see  Special  Indorse- 
ment), which  form  a  material  portion  of  the  total  but  are  not  represented 
in  the  amount  of  money  recovered,  except  where  arrears  of  rent  are 
recovered  in  the  same  action.  These  figures  are  taken  from  the  Civil 
Judicial  Statistics  for  the  year  1907. 

History  of  Order  14. — As  previously  pointed  out  under  Special 
Indorsement  {q.v.),  the  history  of  summary  procedure  under  Order  14 
VOL.  XIII.  44 


690  SUMMAEY  JUDGMENT  UNDER  ORDER  14 

is  closely  connected  with  that  of  the  special  indorsement  of  the  writ 
under  sec.  25  of  the  Common  Law  Procedure  Act,  1852,  15  &  16  Vict. 
c.  76,  and  later,  under  Order  3,  r.  6,  of  the  Rules  of  the  Supreme  Court, 
1883.  The  special  indorsement  of  the  writ  was  introduced  in  order  to 
separate  simple  money  claims  from  others  of  a  more  complicated  nature, 
and  to  enable  plaintiffs  suing  for  such  claims  to  obtain  judgment  in 
default  of  appearance  by  an  automatic  process  without  resort  to  the 
judicial  machinery  of  the  Court.  If  a  defendant  failed  to  appear  within 
the  time  limited  the  plaintiff  was  enabled  on  proof  of  due  service  and 
of  non-appearance  to  take  final  judgment  for  the  amount  claimed.  The 
Court,  however,  retained  the  power  to  set  aside  a  judgment  so  obtained 
on  the  application  of  the  defendant,  "  supported  by  satisfactory  affidavits 
accounting  for  the  non-appearance,  and  disclosing  a  defence  upon  the 
merits."  In  1855  this  summary  procedure  was  carried  a  step  further 
by  the  Summary  Procedure  on  Bills  of  Exchange  Act,  1855, 18&19  Vict. 
c.  67).  The  preamble  to  that  Act  says  :  "  Whereas  hond-fide  holders  of 
dishonoured  bills  of  exchange  and  promissory  notes  are  often  unjustly 
delayed  and  put  to  unnecessary  expense  in  recovering  the  amount 
thereof  by  reason  of  frivolous  or  fictitious  defences  to  actions  thereon, 
and  it  is  expedient  that  greater  facilities  than  now  exist  should  be  given 
for  the  recovery  of  money  due  on  such  bills  and  notes,"  etc.  The  pro- 
cedure established  by  that  Act  was  similar  to  that  now  existing  under 
Order  14.  The  writ  of  summons  had  to  be  indorsed  in  a  special  form 
prescribed  by  the  Act,  and  gave  the  defendant  twelve  days  after  service 
within  which  to  obtain  leave  of  a  judge  to  enter  appearance  and  defend 
the  action,  and  to  enter  such  appearance.  In  order  to  obtain  this  leave 
the  defendant  had  to  issue  a  summons,  and  either  to  bring  the  money 
into  Court  or  establish  a  legal  or  equitable  ground  of  defence.  If  the 
judge  refused  leave  to  appear  and  defend,  the  plaintiff  was  at  liberty  to 
enter  final  judgment  in  default  of  appearance. 

On  the  recommendation  of  the  Judicature  Commission,  the  principle 
of  the  provisions  of  the  Common  Law  Procedure  Act,  1852,  s.  25,  and 
the  Summary  Procedure  on  Bills  of  Exchange  Act,  1855,  was  retained 
in  Order  3,  r.  6,  and  Order  14  of  the  Rules  of  the  Supreme  Court,  1875. 
In  the  case  of  Order  14,  however,  the  practice  prescribed  was  a  complete 
reversal  of  the  older  procedure.  Instead  of  the  onus  of  proof  being 
placed  on  the  defendant  only  to  show  that  he  had  a  good  defence,  the 
necessity  was  imposed  on  the  plaintiff  to  show  that  there  was  no  defence 
to  the  action,  and  the  defendant  was  at  the  same  time  given  the  oppor- 
tunity of  setting  up  a  defence  on  the  merits,  or  offering  to  bring  the 
money  into  Court,  or  satisfying  the  judge  that  there  was  an  issue  of  fact 
or  question  of  law  to  be  determined.  Order  14  has  received  several 
improvements  since  1875,  the  existing  Order  having  been  made  as 
recently  as  1893,  but  these  improvements  have  been  mostly  confined 
to  matters  of  detail,  and  the  Order  of  1875  has  not  been  departed  from 
in  principle. 

II.  Scope  and  Limitation  of  the  Procedure. 

Generally. — Procedure  under  Order  14  is  summary  in  its  nature. 
When  it  is  applied  it  shuts  a  defendant  out  from  defending  the  action, 
and  gives  immediate  final  judgment  to  the  plaintiff.  It  is  therefore 
stringent  as  well  as  summary,  and  as  a  natural  consequence  the  Court 
has  from  the  first  imposed  upon  itself  extreme  caution  in  applying  it, 


SUMMAEY  JUDGMENT  UNDER  ORDER  14  691 

as  a  safeguard  against  injustice  to  a  defendant.  The  primary  object  of 
the  Order  was  to  prevent  a  plaintiff  who  had  an  undoubted  right  to 
recover  a  sum  of  money  from  being  delayed  and  put  to  unnecessary 
expense  by  a  defendant  who  had  no  defence,  but  who  resorted  to 
technical  methods  of  resistance  to  keep  the  plaintiff  out  of  his  rights. 
But,  on  the  other  hand,  "  a  defendant  ought  not  to  be  shut  out  from 
defending  unless  it  is  very  clear  indeed  that  he  has  no  case  in  the  action 
under  discussion  "  {per  Esher,  M.R.,  Sheppards&  Co.  v.  Wilkinson,  1889, 
6  T.  L.  E.  13).  "  The  view  which  ought  to  be  taken  of  Order  14  is  that 
the  tribunal  to  which  the  application  is  made  should  simply  determine, 
'  Is  there  a  triable  issue  to  go  before  a  jury  or  a  Court  ? '  It  is  not  for 
that  tribunal  to  enter  into  the  merits  of  the  case  at  all."  Where  there 
is  no  triable  issue  of  law  or  fact,  summary  judgment  may  be  given. 
Where  there  is  a  triable  issue  of  law  or  fact,  leave  to  defend  must  be 
given  (Jacobs  v.  Booth's  Distillery  Co.,  [1901]  85  L.  T.  262,  H.  L.).  And 
this  principle  has  been  carried  a  step  further.  Where  a  defendant  has 
clearly  no  defence  to  the  action,  but  has  a  hond-fde  counterclaim  against 
the  plaintiff,  he  is  not  to  be  shut  out  from  proving  his  counterclaim 
against  the  plaintiff  (/S'Aep^arc^s  &  Co.  v.  Wilkinson,  ubi  sup.).  Two  things, 
therefore,  are  absolutely  essential  before  a  plaintiff  can  obtain  summary 
judgment  under  Order  14.  First,  the  claim  in  the  action  must  be  strictly 
within  Order  3,  r.  6  (see  Special  Indorsement).  Secondly,  the  plaintiff 
must  be  able  to  show  that  there  is  no  defence,  and  the  judge  or  Master 
must  be  satisfied  on  hearing  the  defendant  that  he  has  no  real  defence. 
The  absence  of  the  defendant  on  the  return  of  the  summons  is  taken  as 
an  admission  that  he  cannot  resist  the  claim  of  the  plaintiff. 

Time  for  making  Application. — The  primary  intention  of  Order  14 
was  obviously  to  enable  the  plaintiff  to  apply  for  summary  judgment 
after  appearance  and  before  the  time  for  defence  (viz.,  ten  days  from  the 
time  limited  for  appearance)  had  expired.  It  was  held,  however,  in 
M'Lardy  v.  Slateum,  1890,  24  Q.  B.  D.  504,  that  an  application  after 
defence  delivered  was  allowable  if  the  plaintiff  could  show  that  the 
delay  was  justifiable  under  the  special  circumstances  of  the  case.  The 
plaintiff  should,  however,  apply  promptly,  because,  unless  he  obtains  his 
order  for  judgment  within  twenty-one  days  from  service  of  the  writ,  or 
such  further  time  as  may  be  ordered,  he  loses  the  right  conferred  by 
that  section  to  High  Court  costs,  unless  he  recovers  £100  or  upwards. 

III.  Plaintiff's  Right  to  Judgment. 

Where  there  is  no  doubt  as  to  the  plaintiff's  right  to  judgment  he  is 
entitled  to  his  order.  The  plaintiff's  right  to  judgment  under  Order  14 
is  not  confined  to  cases  in  which  the  old  action  of  debt  in  its  technical 
form  would  have  been  maintainable,  but  applies  to  all  cases  in  which  a 
claim  can  be  specially  indorsed  under  Order  3,  r.  6.  For  example,  for- 
merly an  action  of  debt  would  not  lie  for  the  payment  of  an  instalment 
presently  due  under  a  contract  for  payment  of  a  larger  sum  at  a  later 
date  than  the  instalment.  Now,  however,  the  combined  effect  of  Order  3, 
r.  6,  and  Order  14  is  to  bring  such  an  action  within  the  scope  of  the 
latter  order.  Where  there  was  an  express  contract  to  pay  a  stated  sum 
•of  money  for  the  building  of  a  ship  by  instalments  at  certain  stages  of 
the  building,  the  first  instalment  to  be  paid  when  the  keel  was  laid,  it 
was  held  that  the  special  indorsement  for  the  amount  of  such  instalment 
when  due  was  within  Order  3,  r.  6,  and  that  the  plaintiff  was  entitled 


692  SUMMAKY  JUDGMENT  UNDER  OEDER  14 

to  judgment  under  Order  14  for  that  amount  ( Workman,  Clark  &  Co., 
Ltd.  V.  Zloyd  Braziliero,  [1908]  1  K.  B.  968,  C.  A.). 

The  same  principle  must  be  applied  to  cases  where  the  plaintiff  is 
entitled  to  judgment  for  part  of  his  claim  while  the  defendant  is  entitled 
to  unconditional  leave  to  defend  as  to  the  residue.  Thus  in  a  money- 
lender's action,  where  the  defendant  sets  up  a  claim  for  relief  under  the 
Money-Lenders  Act,  1900,  the  proper  order  to  be  made  under  Order  14 
is  for  judgment  for  the  plaintiff  for  the  money  actually  advanced,  with 
leave  to  defend  as  to  the  residue  {Lazarus  v.  Smith,  [1908]  2  K.  B.  266, 
C.  A.). 

Affidavit  in  Support. — Forms  of  affidavit  in  support  of  an  application 
under  Order  14  are  given  in  Chitty's  Forms,  pp.  85-87,  876.  The  plaintiff 
or  some  other  person  who  can  swear  positively  to  the  facts  must  make 
the  affidavit  proving  the  claim,  and  stating  that  the  deponent  verily 
believes  there  is  no  defence.  A  copy  of  this  affidavit  and  of  any  exhibit 
referred  to  must  be  served  on  the  defendant  with  the  summons  (Order  14, 
r.  2).  It  will  be  more  convenient  to  consider  the  cases  establishing  or 
limiting  the  plaintiff's  right  to  judgment  under  Order  14,  together  with 
those  determining  the  rights  of  the  defendant  to  defend  (see  next  note). 

IV.  Defendant's  Eight  to  Defend. 

How  Established. — Order  14,  r.  3,  states  the  three  methods  by  which 
the  defendant  may  establish  his  right  to  defend. 

This  rule  is  as  follows : — (a)  The  defendant  may  show  cause  against 
such  application  by  affidavit,  or  (except  in  actions  for  recovery  of  land) 
by  offering  to  bring  into  Court  the  sum  indorsed  on  the  writ,  or  the 
judge  may  allow  the  defendant  to  be  examined  upon  oath, 

(6)  The  affidavit  shall  state  whether  the  defence  alleged  goes  to  the 
whole,  or  part  only,  and  (if  so)  to  what  part,  of  the  plaintiff's  claim. 

(c)  The  judge  may,  if  he  thinks  tit,  order  the  defendant,  or,  in  the 
case  of  a  corporation,  any  officer  thereof,  to  attend  and  be  examined  upon 
oath,  or  to  produce  any  leases,  deeds,  books,  or  documents,  or  copies  of, 
or  extracts  therefrom. 

"By  Affidavit." — These  words  must  be  read  with  the  corresponding 
clause  of  Order  14,  r.  1,  which  provides  that  the  defendant  may  show 
cause  "  by  affidavit  or  otherwise."  The  defendant  must  make  an  affidavit 
if  he  desires  to  make  out  a  case  for  defence.  If  he  is  a  person  who  can 
make  an  affidavit  his  personal  affidavit  will  not  be  dispensed  with,  but 
if  the  defendant  is  a  corporation  the  affidavit  may  be  made  by  some 
person  properly  qualified  to  swear  to  the  facts  (see  Shelford  v.  Louth 
and  East  Coast  Ely.  Co.,  1879, 4  Ex.  D.  317).  The  words  "  or  otherwise  "  ' 
do  not  relieve  the  defendant  from  the  necessity  of  making  an  affidavit. 
If  he  seeks  to  rely  on  documents  he  must  still  bring  them  properly  before 
the  Court  by  affidavit  in  support  (  United  Founders'  Trust  v.  FitzGeorge, 
1891,  7  T.  L.  E.  620). 

Offering  to  Bring  Money  into  Court. — The  words  of  the  above  rule 
appear  at  first  sight  to  entitle  the  defendant  to  defend  if  he  pay  the 
amount  claimed  into  Court.  But  such  was  not  the  intention  of  the  rule. 
The  words  do  not  mean  that  upon  an  offer  of  that  kind  the  judge  is 
bound  to  refuse  the  plaintiff's  application.  The  offer  is  not  decisive  in 
the  defendant's  favour.  He  is  bound  to  show  that  he  has  some  reason- 
able ground  of  defence  to  the  action,  and  if  he  cannot  do  so  the  plaintiff 
is  entitled  to  judgment  {Crump  v.  Cavendish,  1880,  5  Ex.  D.  211).     On 


SUMMARY  JUDGMENT  UNDER  ORDER  14  693 

the  other  hand,  where  there  is  clearly  a  question  of  account  between 
the  parties,  as  where  the  plaintiff  is  mortgagee  in  possession,  there  must 
be  a  very  special  reason  to  justify  an  order  making  leave  to  defend  con- 
ditional on  paying  money  into  Court  (  Wallingford  v.  MiUucd  Society,  1880, 
5  App.  Cas.  685). 

It  is  always  open  to  the  defendant  to  pay  money  into  Court  under 
Order  22  in  satisfaction  of  a  specified  portion  of  the  plaintiff's  claim, 
and  the  money  so  appropriated  may  be  dealt  with  as  provided  by  that 
order.     See  Payment  Into  and  Out  of  Court. 

Examining  the  Defendant  upon  Oath. — This  power  is  hardly  ever 
exercised.  The  only  case  on  record  in  which  it  was  resorted  to  was  in 
an  action  on  a  bill  of  exchange,  which  the  defendant  alleged  was  obtained 
by  fraud,  and  on  appeal  to  the  judge  from  the  district  registrar  the 
judgment  given  was  set  aside  on  the  ground  that  there  was  no  power 
under  Order  14  in  such  a  case  to  test  the  story  of  either  party  {Millard 
V.  Baddeley,  1884,  W.  N.  96). 

General  Extent  of  Proof  Required  from  Defendant. — A  mere  denial 
of  the  plaintiff's  claim  is  insufficient  to  entitle  a  defendant  to  leave  to 
defend.  He  must  show  the  ground  of  his  defence  on  the  merits.  "  I 
think  that  when  affidavits  are  brought  forward  to  raise  that  defence 
they  must,  if  I  may  use  the  expression,  condescend  upon  particulars. 
It  is  not  enough  to  swear,  '  I  say  I  owe  the  man  nothing.'  You  must 
satisfy  the  judge  that  there  is  reasonable  ground  for  saying  so.  So 
again,  if  you  swear  that  there  was  fraud,  that  will  not  do.  It  is  difficult 
to  define  it,  but  you  must  give  such  an  extent  of  definite  facts  pointing 
to  the  fraud  as  to  satisfy  the  judge  that  those  are  facts  which  make  it 
reasonable  that  you  should  be  allowed  to  raise  that  defence.  And  in 
like  manner  as  to  illegality,  and  every  other  defence  that  might  be 
mentioned  "  {per  Lord  Blackburn,  Wallingford  v.  Miitual  Society,  1880, 
5  App.  Cas.,  at  p.  704).  The  principle  here  laid  down  applies  generally, 
except  where  a  foreign  judgment  is  sued  upon  and  the  defendant  alleges 
in  his  affidavit  that  it  was  obtained  by  fraud,  in  which  case  the  mere 
allegation  is  sufficient  to  entitle  him  to  leave  to  defend  {Codd  v.  Delap, 
1905,  92  L.  T.  510,  H.  L.),  even  though  the  fraud  alleged  is  such  that  it 
cannot  be  proved  without  re-trying  the  questions  adjudicated  upon  by 
the  foreign  Court  {Vadala  v.  Zawes,  1890,  25  Q.  B.  D.  310). 

It  is  not  necessary,  however,  that  the  defendant  should  show  a  com- 
plete defence  to  the  action.  "  If  there  is  a  fair  probability  of  a  defence, 
a  defence  ought  to  be  allowed,  without  imposing  the  condition  of  pay- 
ment of  money  into  Court"  {Ward  v.  PlumUey,  1890,  6  T.  L.  R.  198; 
Jacobs  V.  Booths  Distillery  Co.,  1901,  85  L.  T.  262,  H.  L., cited  II.,  supra); 
and  although  mere  inability  to  pay  is  not  in  itself  any  defence,  or  even 
ground  for  stay  of  execution  {Desart  v.  Townsend,  1887,  22  L.  R.  Ir.  389), 
yet  the  fact  that  the  defendant  has  no  means  is  not  to  deprive  him  of 
the  right  to  defend  if  he  can  show  a  primd  facie  case  for  defence  (  Ward 
V.  Plumbley,  supra).  "  By  the  very  words  of  the  order  the  plaintiff  is  not 
to  be  allowed  to  sign  judgment  merely  because  the  defendant's  affidavit 
does  not  show  a  complete  defence"  {per  Brett,  L.J.,  Bay  v.  Barker,  1879, 
4  Ex.  D.  p.  283 ;  and  see  Harrison  v.  Bottenheim,  1878,  26  W.  R.  362 ; 
Thompson  v.  Marshall,  1880,  28  W.  R.  220).  Where  there  is  any  doubt 
as  to  the  solidity  of  the  defendant's  defence  there  is  discretion,  on 
giving  leave  to  defend,  to  impose  terms  {Shurmur  v.  Young,  1889, 
33  Sol.  J.  155). 

Defence  as  to  Part  of  Claim. — By  Order  14,  r.  4,  it  is  enacted  that  if 


694  SUMMAKY  JUDGMENT  UNDEE  OEDEE  14 

the  defendant  sets  up  a  defence  to  part  only  of  the  plaintiff's  claim,  the 
plaintiff  shall  have  judgment  forthwith  for  such  part  of  the  claim  as  the 
defence  does  not  apply  to,  or  as  is  admitted,  on  such  terms  as  to  stay  of 
execution  or  otherwise  as  the  judge  may  determine.  And  the  defendant 
may  be  allowed  to  defend  as  to  the  residue.  In  granting  the  defendant 
leave  to  defend  as  to  such  residue,  there  is  no  power  to  impose  a  condi- 
tion that  the  defendant  first  pay  the  plaintiff  the  amount  admitted  to  be 
due  {Dennis  v.  Seymour,  1879,  4  Ex.  D.  80).  In  an  action  on  a  common 
money  bond  within  4  &  5  Anne,  c.  16,  s.  12,  the  plain tifif  suing  for  the 
full  amount  is  entitled  to  judgment  under  this  rule  for  the  amount 
actually  due  {Gerard  v.  Clowes,  [1892]  2  Q.  B.  11). 

Question  of  Law. — If  the  defendant  can  show  that  the  case  involves  a 
question  of  law  which  ought  to  be  tried  in  Court  he  is  entitled  to  uncon- 
ditional leave  to  defend.  Order  14  was  never  meant  to  be  applied  to 
such  a  case  {Electric  and  General  Contract  Corporation  v.  Thompson- Houston 
Electric  Co.,  1893, 10  T.  L.  E.  103 ;  Crawford  v.  Gilmore,  1891,  30  L.  E.  Ir. 
238).  But  where  the  point  of  law  sought  to  be  raised  was  not  one 
involving  any  doubt,  the  judgment  given  in  chambers  for  the  plaintiff 
was  upheld  {Nassau  Steam  Press  v.  Tyler,  1894,  70  L.  T.  376 ;  Dane  v. 
Mortgage  Insurance  Corporation,  [1894]  1  Q.  B.  54,  C.  A.).  Thus  where 
the  plaintiff,  a  lady,  sued  for  the  balance  due  of  an  annuity  covenanted 
to  be  paid  her  for  life  by  the  defendant,  and  the  defendant  set  up  the 
defence  that  the  annuity  was  given  with  a  view  to  assisting  the  plaintiff 
to  lead  a  chaste  life,  whereas  she  was  leading  an  unchaste  life,  it  was 
held  that  there  was  no  question  to  be  tried,  because  the  deed  contained 
no  dum  casta  clause.  Judgment  under  Order  14  upheld  {T.  v.  S.,  1894, 
39  Sol.  J.  152). 

Question  of  Fact  to  be  Tried. — If  the  defendant  can  show  that  there 
is  a  fair  dispute  as  to  the  meaning  of  the  document  on  which  the 
plaintiff's  claim  is  based  he  is  entitled  to  unconditional  leave  to  defend 
{Bowes  V.  Caustic  Soda,  etc..  Syndicate,  1893,  9  T.  L.  E.  328).  Also,  if  he 
can  raise  a  material  issue  as  to  the  real  relations  of  the  parties  {Lindsay 
V.  Martin,  1889,  5  T.  L.  E.  322);  or  whether  the  plaintiff"  has  fulfilled 
his  part  of  the  contract  {Ford  v.  Harvey,  1893,  9  T.  L.  E.  328). 

In  the  case  of  Stock  Exchange  transactions  in  an  action  for  differences 
where  no  money  has  passed  between  the  parties,  the  mere  fact  that  the 
question  remains  undecided,  whether  the  Gaming  Act,  1892,  applies,  is 
sufficient  reason  for  giving  unconditional  leave  to  defend  ( Woodall  v. 
Cresswell,  1893,  9  T.  L.  E.  618).  In  an  action  on  a  bill  of  exchange,  where 
the  plaintiff  set  up  the  defence  that  he  had  not  received  any  consideration 
for  the  bill,  except  certain  bonds,  the  value  of  which  was  misrepresented 
by  the  plaintiff",  it  was  held  that  the  defendant  ought  to  have  uncon- 
ditional leave  to  defend  {JViTig  v.  Thurlow,  1893,  10  T.  L.  E.  53,  151). 
So  where  a  bond-fide  case  of  fraud  is  set  up,  leave  to  defend  ought  to  be 
given  and  the  case  sent  for  trial.  Order  14  was  not  intended  to  apply 
to  such  a  case  {Millard  v.  Baddeley,  1884,  W.  N.  96). 

Counterclaim  hy  Defendant. — The  rule  where  the  defendant  sets  up  a 
counterclaim  under  Order  14  is  as  follows : — If  the  defendant  has  no 
defence  to  the  plaintiff's  claim,  but  has  a  counterclaim,  the  plaintiff  is 
entitled  to  judgment;  but  it  must  be  given  with  a  stay  of  execution  on 
it  until  the  counterclaim  is  tried  {Sheppards  &  Co.  v.  Wilkinson,  1889, 
6  T.  L.  E.  13 ;  Slater  v.  Cathcart,  1891,  8  T.  L.  E.  92).  The  mere  fact 
that  a  counterclaim  is  pleaded  is  not  sufficient  reason  to  grant  a  de- 
fendant leave  to  defend  even  on  terms  of  paying  money  into  Court.     If 


SUMMAEY  JUDGMENT  UNDER  ORDER  14  695 

there  is  no  defence  to  the  plaintiff's  claim  he  is  not  to  be  put  to  the 
necessity  of  proving  it  (Sheppards  &  Co.  v.  Wilkinson,  supra).  But  if 
the  defence  and  counterclaim  are  contingent  the  one  on  the  other,  and 
the  defendant  admits  certain  items  of  the  plaintiff"'8  claim  subject  to  the 
counterclaim,  there  ought  to  be  unconditional  leave  to  defend  as  to  the 
whole  {Cmrt  v.  Sheen,  1891,  7  T.  L.  R.  556;  Ford  v.  Harvey,  1893, 
9  T.  L.  R.  328). 

A  defendant  who  sets  up  a  counterclaim  by  affidavit  under  Order  14 
takes  a  step  which  may  be  held  to  be  equivalent  to  commencing  an 
action  for  the  same  purpose.  Thus  where  a  company  sued  a  shareholder 
under  Order  14  for  a  call  on  his  shares,  and  the  defendant  set  up  by 
affidavit  a  counterclaim  for  rescission  of  the  contract  to  take  shares 
on  the  ground  of  misrepresentation,  it  was  held  that  he  had  thereby 
become  entitled  to  claim  rescission,  notwithstanding  a  subsequent  order 
to  wind  up  the  company  {Re  General  Railway  Syndicate,  [1900]  1  Ch.  365). 

PrelimiTiary  Objection  by  Defendant. — Prior  to  January  1,  1894,  a 
defendant  sued  under  Order  14  could  upset  the  plaintiff's  case  entirely 
if  he  could  find  a  technical  flaw,  however  slight,  in  the  special  indorsement 
on  the  writ.  It  was  held  in  Gurney  v.  Small,  [1891]  2  Q.  B.  584,  that 
the  opening  words  of  Order  14,  r.  1,  "  Where  the  defendant  appears  to  a 
writ  specially  indorsed  under  Order  3,  r.  6,  the  plaintiff  may,"  etc.,  must 
be  strictly  construed  as  limiting  the  operation  of  Order  14  to  cases  in 
which  the  writ  was  specially  indorsed  at  the  time  of  appearance.  And 
further,  that  inasmuch  as  this  was  a  preliminary  necessity  to  the  appli- 
cation of  Order  14,  there  was  no  power  in  the  Court  to  remedy  any 
defect  in  the  special  indorsement  by  amendment.  The  effect  of  this 
decision  on  the  working  of  Order  14  was  serious,  and  though  the  ruling 
was  subsequently  relaxed  by  Paxton  v.  Baird,  [1893]  1  Q.  B.  139,  to  the 
extent  of  allowing  amendment  after  appearance,  and  before  the  sum- 
mons for  judgment  was  issued,  the  working  of  the  Order  continued  to 
be  seriously  impaired  until  the  Rules  of  the  Supreme  Court,  November 
1893,  came  into  operation.  By  Order  14,  r.  1  (b),  of  these  rules,  power 
was  expressly  given  to  the  Court  to  amend  the  writ  by  striking  out  from 
the  indorsement  any  claim  which  could  not  properly  form  part  of  a 
special  indorsement  (see  Special  Indorsement)  without  prejudice  to  the 
plaintiff's  right  to  proceed  under  Order  14.  The  power  thus  given  was 
still  limited  to  striking  out  any  objectionable  item  in  the  claim.  But 
in  1895  it  was  held  by  the  Divisional  Court  and  by  the  Court  of  Appeal 
that  amendment  of  a  defective  indorsement  by  supplying  an  omission 
was  also  permissible  {Roberts  v.  Plant,  [1895]  1  Q.  B.  597).  This  power 
to  amend,  however,  is  discretionary,  and  it  is  not  the  practice  of  the 
Court  to  apply  it,  except  for  the  purpose  of  remedying  any  technical, 
defect  in  the  special  indorsement.  In  all  essential  and  material  par- 
ticulars the  writ  must  be  specially  indorsed  (see  Special  Indorsement) 
in  order  to  ground  proceedings  for  summary  judgment  under  Order  14. 

[For  cases  determining  points  of  detail  in  accordance  with  the  prin- 
ciples above  indicated,  see  notes  under  Order  14  in  The  Annual  Practice, 
and  see  also  Cavanagh's  Law  of  Summary  Judgnunt ;  Chitty's  Arch.,  14th 
ed.,  269.] 

V.  Powers  of  the  Judge  under  Order  14. 

(See  also  III.,  supra.  Plaintiff's  Right  to  Judgment,  and  IV.,  supra. 
Defendant's  Right  to  Defend.) 

To  Amend. — The  power  of  the  judge  to  amend  under  Order  14  is 
dealt  with  in  the  note  Preliminary  Objection  by  Defendant,  supra. 


696  SUMMARY  JUDGMENT  UNDER  ORDER  14 

To  Give  Direeticms. — By  Order  14,  r.  8  (a),  the  judge  has  power,  in 
giving  leave  to  defend,  to  give  full  directions  with  respect  to  the  whole 
future  course  of  the  action  in  all  respects  as  if  he  were  dealing  with  the 
case  under  a  summons  for  directions  under  Order  30.  This  power 
extends  to  subsequent  directions,  besides  those  given  on  giving  leave  to 
defend,  and  either  party  may  at  any  time  issue  a  notice  for  further 
directions  under  Order  30,  r.  5,  in  the  same  way  as  if  a  summons  for 
directions  had  been  previously  issued  and  heard  (see  Directions, 
Summons  for). 

To  Order  Summary  Trial. — By  the  same  rule  the  judge  has  power  to 
order  the  action  to  be  forthwith  set  down  for  trial  without  pleadings. 
Where  such  a  direction  is  given  the  case  is  entered  in  a  special  list  for 
trial  of  actions  under  Order  14.  But  the  judge  cannot  in  any  way  limit 
the  scope  of  the  trial,  and  where  the  order  for  summary  trial  specified  a 
particular  defence  as  the  only  one  to  be  tried,  and  the  judge  at  the  trial 
refused  to  try  any  other,  the  case  was  remitted  to  be  re-tried  without  any 
such  restriction  {Langton  v.  Roberts,  1894,  10  T.  L.  R.  492,  C.  A.). 

Place  and  Mode  of  Trial. — It  has  been  held  that  though  the  order 
for  leave  to  defend  and  insertion  of  the  case  in  the  special  list  for  trial 
may  prescribe  the  mode  of  trial  directing  that  the  action  be  tried  without 
a  jury,  if  it  does  not  so  direct  there  is  no  power  by  a  subsequent  order  to 
deprive  the  defendant  of  his  right  to  a  jury  under  Order  36,  r.  6  ( Woolfe 
v.  De  Braam,  1900,  48  W.  R.  161,  C.  A.).  At  the  time  of  going  to  press 
it  is  not  possible  to  say  how  far  this  case  will  apply  to  future  proceedings 
under  Order  14.  The  Rules  of  the  Supreme  Court  (July)  1908,  Order 
64,  rr.  30  to  41,  came  into  operation  on  October  12,  1908.  Order  32  of 
these  rules  provides  that  "every  order  giving  leave  to  defend  under 
Order  14  shall  direct  whether  the  action  is  to  be  tried  with  a  special 
jury,  or  with  a  common  jury,  or  without  a  jury  (whether  by  a  judge  or 
otherwise);"  and, further, directs  that  the  action  shall  be  forthwith  entered 
in  the  list  as  directed.  This  rule  leaves  out  of  sight  the  important  fact 
that  in  probably  the  majority  of  cases  where  leave  to  defend  is  given  the 
action  does  not  go  to  trial  at  all,  but  on  the  expiration  of  the  time  fixed 
for  defence  by  Order  21,  r,  7  (which  has  not  been  repealed),  no  defence 
is  delivered,  and  the  plaintiff  enters  judgment  in  default  under  Order  27. 
It  is  not  possible,  therefore,  for  the  Master,  on  giving  leave  to  defend,  to 
fix  the  place  and  mode  of  trial,  without  setting  aside  the  default  rules 
which  have  not  been  repealed. 

The  rules  of  July  1908,  moreover,  do  not  repeal  Order  36,  rr.  2,  6, 
which  leave  the  parties  the  option  of  demanding  at  the  time  of  giving 
or  receiving  notice  of  trial  the  right  to  demand  trial  with  a  jury.  The 
rules  referred  to  (Order  54,  Part  III.)  will  require  alteration  to  meet 
these  and  other  difficulties,  if,  indeed,  they  can  be  made  to  work  at  all. 

To  Remit  to  the  County  Court. — The  judge  has  power  under  Order  14 
to  remit  the  action  to  the  County  Court  under  the  County  Courts  Act, 
1888,  51  &  52  Vict.  c.  43,  s.  65 ;  this  order  to  remit  may  be  given  con- 
jointly with  judgment  for  the  plaintiff  for  part  of  the  claim,  or  with 
conditional  or  unconditional  leave  to  defend. 

To  Refer  the  Action  hy  Consent  to  a  Master. — Order  14,  r.  7,  provides 
that  upon  the  hearing  of  an  application  for  summary  judgment  an  order 
may  be  made  by  consent  of  parties  referring  the  action  to  a  Master. 
The  order  of  reference  must  be  drawn  up  and  must  state  that  it  is  made 
by  consent  of  parties  {Haycocks  v.  Mulholland,  [1904]  1  K.  B.  145 ;  Form 
of  Order,  R.  S.  C,  App.  K.,  No.  9a). 


SUMMARY  JUDGMENT  UNDER  ORDER  14  697 

The  Master  may  refer  the  action  to  himself  or  any  other  Master,  and 
in  taking  such  reference  the  Master  sheds  his  jurisdiction  as  Master  in 
Chambers,  with  the  powers  of  a  judge,  subject  to  appeal  to  the  Judge  in 
Chambers.  He  becomes  a  referee,  with  the  same  powers  and  the  same 
duties,  and  subject  to  the  same  appeal  as  an  official  referee  (see 
Reference  of  Action  by  Oeder).  Thus,  he  has  no  power  while  acting 
as  referee  to  extend  the  time  under  sec.  116  of  the  County  Courts  Act, 
1889,  so  as  to  entitle  the  plaintiff  to  High  Court  costs,  and  in  fixing  the 
costs  of  the  action  he  is  bound  by  the  terms  of  that  section,  though  the 
costs  of  the  reference  and  Master's  certificate  may  be  taxed  on  the  High 
Court  scale  {Haycocks  v.  Mulholland,  supra). 

The  Masters  have  decided  that  the  Master's  certificate  of  such  a 
reference  is  not  to  be  indorsed  on  the  Order  of  Reference,  but  is  to  be  a 
separate  document  (Masters'  Resolution,  February  1905),  By  the  com- 
bined effect  of  Order  36,  rr.  50,  55c,  and  Order  40,  r.  2,  the  Master  is 
bound  to  direct  in  his  certificate  how  judgment  shall  be  entered. 

The  rules  and  cases  defining  the  powers  of  an  official  or  special  referee 
in  the  conduct  of  a  reference  apply  equally  to  a  Master  acting  under 
Order  14,  r.  7.     See  Reference  of  Action  by  Order. 

In  the  matter  of  appeal  against  the  judgment  of  the  Master  acting 
on  such  reference  the  practice  follows  that  of  appeals  from  a  referee,  and 
not  that  of  the  ordinary  appeal  from  the  Master  in  chambers  to  the 
judge  in  chambers,  to  whom  no  appeal  lies  from  a  Master's  decision 
while  acting  as  referee,  nor  to  the  Court  of  Appeal  direct  {Fraser  v. 
Fraser  (No.  1),  [1904]  1  K.  B.  56,  C.  A).  The  appeal  from  the  Master's 
judgment  lies  to  the  Divisional  Court  (Fraser  v.  Fraser,  [1905]  1  K.  B. 
368,  C.  A.). 

It  would  appear,  however,  that  the  identification  of  the  Master's 
position  with  that  of  an  official  referee,  which  has  been  effected  by  the 
above  decisions,  places  the  Master  in  the  same  position  also  with  respect 
to  appeals  from  his  decision  as  to  the  conduct  of  the  reference,  and  that 
appeal  from  such  decisions  lies  to  the  judge  in  chambers,  as  from  an 
official  referee  {Richard  v.  Talbot,  1890,  38  W.  R.  478;  Hayward  v. 
Mutual  Reserve  Fund  Life  Association,  [1891]  2  Q.  B.  236). 

The  Master's  discretion  as  to  costs  is  the  same  as  that  which  the 
Court  or  a  judge  could  have  exercised  (Order  36,  r.  55b)  ;  and  his  order 
as  to  costs  is  within  sec.  49  of  the  Judicature  Act,  1873,  and  no  appeal 
lies  from  it  without  leave  {Minister  v.  Apperley,  [1902]  1  K.  B.  643). 
Where  the  Master  does  not  exercise  his  discretion  as  to  costs,  they 
follow  the  event,  by  virtue  of  sec.  15  (2)  of  the  Arbitration  Act,  1889, 
which  makes  his  certificate  of  the  result  of  the  trial  equivalent  to  the 
verdict  of  a  jury  {Carr  v.  Doiigherty,  [1898]  67  L.  J.  Q.  B.  371). 

To  Give  Relief  from.  Forfeiture. — After  judgment  under  Order  14  for 
recovery  of  land  on  the  ground  of  forfeiture  for  non-payment  of  rent, 
the  tenant  has  the  same  right  to  relief  as  if  the  judgment  had  been  given 
after  trial  (Order  14,  r.  10).  Applications  for  relief  against  forfeiture 
under  the  Conveyancing  Acts,  or  the  Common  Law  Procedure  Acts,  are 
made  by  summons  returnable  before  a  Master. 

Practice  under  the  Moneylenders  Act,  1900. — Neither  the  judge  nor 
Master  in  chambers  has  power  to  grant  relief  under  the  Moneylenders 
Act.  The  special  jurisdiction  to  give  such  relief  belongs  to  the  proper 
tribunal  for  the  trial  of  actions  with  witnesses  (  Wells  v.  Allott,  [1904] 
2  K.  B.  842,  C.  A.),  Prior  to  the  Moneylenders  Act  there  was  power  to 
refuse  judgment  for  exorbitant  interest.     In  the  absence  of  any  special 


698  SUMMARY  JURISDICTION 

circumstances  clearly  entitling  the  plaintiff  to  a  high  rate  of  interest, 
the  practice  was  to  give  judgment  under  Order  14  for  the  money 
actually  advanced,  with  5  per  cent,  interest  from  the  day  on  which  the 
money  was  received,  with  leave  to  defend  as  to  the  residue  {Parker  v. 
Brand,  1891,  7  T.  L.  R.  462).  Now,  under  the  Moneylenders  Act,  where 
a  primd  facie  case  for  relief  is  made  out,  the  order  under  Order  14 
should  be  for  judgment  for  the  plaintiff  for  any  portion  undoubtedly 
remaining  due  of  the  total  money  actually  lent  by  the  plaintiff  to  the 
defendant  during  the  whole  of  the  transactions  forming  the  subject- 
matter  of  the  action,  unless  such  sum  of  money  and  interest  are  paid 
into  Court  or  to  the  plaintiffs  solicitor  within  days,  with  leave 

to  defend  as  to  the  residue.  The  order  should  not  give  any  interest 
whatever,  for  the  whole  question  of  interest  must  remain  to  be  deter- 
mined by  the  tribunal  which  will  try  the  issue  as  to  relief  under  the 
Act  {Lazarus  v.  Smith,  [1908]  2  K.  B.  266,  C.  A.). 

Costs. — The  costs  of  and  incident  to  all  proceedings  under  Order  14 
are  in  the  discretion  of  the  judge  or  Master,  who  may,  however,  refer 
them  to  the  judge  at  the  trial  (Order  14,  r.  9).  In  the  absence  of  such 
a  reference  the  judge  at  the  trial  has  no  power  over  the  costs  of  pro- 
ceedings in  chambers  under  Order  14.  Thus  where  the  judge  in  chambers 
ordered  an  action  to  be  tried  as  a  short  cause,  and  the  costs  of  the 
proceedings  in  chambers  to  be  costs  in  the  cause,  it  was  held  that  the 
judge  in  Court  had  no  power  to  vary  the  chamber  order  as  to  costs 
{Koosen  v.  Rose,  1897,  45  W.  R.  337). 

Costs  are  not  given  until  the  whole  claim  is  adjudicated  on.  Thus 
where  the  plaintiff  claims,  e.g.,  £130,  and  summary  judgment  is  given  for 
the  plaintiff  for  £100  with  leave  to  defend  as  to  the  residue,  the  whole 
question  of  costs  remains  until  the  residue  is  dealt  with.  If  the  residue 
is  remitted  to  the  County  Court  the  question  of  costs  is  remitted  also, 
and  the  High  Court  has  no  power  to  deal  with  it  {Harris  v.  Judge,  [1892] 
2  Q.  B.  565). 

Appeals. — An  appeal  lies  in  every  case  from  the  Master  in  chambers 
to  the  judge  in  chambers  (Order  54,  r.  21);  also  from  the  district 
registrar  to  the  judge  in  chambers  (Order  35,  r.  9).  Time  for  appealing 
from  a  Master — four  days  from  decision ;  from  district  registrar — six 
days,  or  such  further  time  as  may  be  allowed. 

Where  the  judge  in  chambers  gives  unconditional  leave  to  defend,  or 
confirms  an  order  by  a  Master  giving  unconditional  leave  to  defend,  no 
appeal  lies  from  his  decision  (Judicature  Act,  1894,  57  &  58  Vict.  c.  16, 
s.  1  (3)). 

Every  decision  of  the  judge  in  chambers  under  Order  14  is  a  matter 
of  practice  and  procedure,  and  therefore  appeal  lies  direct  to  the  Court 
of  Appeal  {ihid.,  s.  1  (4)). 

If  the  order  of  the  judge  in  chambers  is  interlocutory  no  appeal  lies 
without  leave  of  the  judge  or  the  Court  of  Appeal  {ibid.,  s.  1  (1),  (&)); 
but  an  order  refusing  unconditional  leave  to  defend  is  not  to  be  deemed 
to  be  an  interlocutory  order  within  the  last-mentioned  section  {ibid., 
s.  1  (2)). 

Summary  Jurisdiction. — In  English  law  the  grant  of 

"summary  jurisdiction,"  or  the  decision  of  matters  in  a  "summary 
manner,"  implies  some  substitution  of  a  short  and  quick  remedy 
instead  of,  or  as  an  alternative  to,  the  more  elaborate  process  of  the 
common  law,  i.e.  the  procedure  by  indictment  or  action,  in  use  at  the 


SUMMAEY  JUEISDICTION"  699 

date  of  the  new  provision.  The  ancient  "piepowder"  {pied  poudreuse 
or  dusty-foot)  Courts  acted  in  this  summary  manner  (Selden  Soc.  Pub., 
vol.  xxiii.),  but  all  modern  authority  to  deal  summarily  with  litigation 
rests  on  statute,  or  on  rules  made  under  statutory  authority,  such  as 
those  regulating  originating  summonses  in  the  High  Court. 

The  legislature  has  been  specially  lavish  in  the  grant  of  summary 
jurisdiction  to  justices  of  the  peace,  as  the  most  accessible  judicial 
functionaries. 

Under  the  commission  of  the  peace  the  justices  have  no  judicial 
authority  out  of  sessions  {Kitchen  v.  Shaw,  1837,  6  Ad.  &  E.  729; 
Cullen  V.  Trimble,  1872,  L.  E.  1  Q.  B.  716),  except  the  power,  now 
regulated  by  the  Indictable  Offences  Act,  1848,  of  arresting  offenders 
and  committing  them  for  trial.  See  Prosecution.  By  a  long  series  of 
Acts,  beginning  with  the  Statute  of  Labourers,  they  have  acquired 
authority  to  deal  with  many  matters  out  of  sessions,  some  of  an 
administrative,  some  of  a  judicial  character. 

Their  purely  administrative  powers  have  for  the  most  part  been 
transferred  to  urban  or  rural  District  Councils  and  County  Councils. 
See  Town  Government.  But  they  retain  authority  to  grant  licences  for 
the  sale  of  intoxicants,  and  in  certain  urban  districts  for  the  sanction  of 
public  music  and  dancing.    See  Public  Entertainments. 

Their  judicial  functions,  out  of  Quarter  Sessions,  are  usually  described 
as  the  summary  jurisdiction  of  justices,  i.e.  authority  to  hear  and  deter- 
mine informations  about  petty  offences,  or  complaints  about  civil  matters, 
without  referring  the  matters  for  decision  to  a  Court  of  Eecord.  After 
sundry  prior  attempts  in  1879  (42  &  43  Vict.  c.  49,  s.  50)  and  1884  (47 
&  48  Vict.  c.  43,  s.  7)  to  define  Court  of  summary  jurisdiction,  it  was  in 
1889  (52  &  53  Vict.  c.  63,  s.  13  (11))  defined  as  any  justice  or  justices  of 
the  peace  or  other  magistrate,  by  whatever  name  called,  to  whom  juris- 
diction is  given  by,  or  who  is  authorised  to  act  under,  the  Summary 
Jurisdiction  Acts  when  in  England  or  Wales,  and  whether  acting  under 
the  S.  J.  Acts  or  any  other,  or  under  any  other  Act  or  by  virtue  of  his 
commission,  or  under  the  common  law.  The  S.  J.  Acts  are  the  S.  J.  Act, 
1848,  11  &  12  Vict.  c.  43,  the  S.  J.  Act,  1879,  42  &  43  Vict.  c.  49,  and 
any  Act,  past  or  future,  amending  either  of  these  Acts  (52  &  53  Vict. 
c.  63,  s.  13  (7)). 

It  was  for  some  time  considered  that  the  wide  definition  of  the  Court 
covered  all,  or  almost  all,  the  sittings  of  justices  at  which  evidence  was 
taken.  But  this  view  was  declared  erroneous  in  Boulter  v.  Kent  Justices, 
[1898]  A.  C.  556,  so  far  as  related  to  proceedings  for  the  grant,  renewal, 
or  transfer  of  liquor  licences.  This  decision  has  had  the  result  of  intro- 
ducing a  diversity  of  procedure  as  to  costs  and  on  appeals,  which  had 
been  got  rid  of  by  the  reversed  decisions.  The  result  of  Boulters  Case 
is  that  justices  acting  as  a  licensing  authority  are  not  a  Court  of  sum- 
mary jurisdiction,  but  in  dealing  with  offences  under  the  Licensing  Acts 
they  are.  Justices  sitting  to  review  jury  lists  do  not  form  a  Court  of 
summary  jurisdiction  {Hagmaier  v.  Willesden  Overseers,  [1904]  2  K.  B. 
316).  Justices  who  grant  distress  warrants  to  recover  rates,  were  at  one 
time  regarded  as  acting  ministerially,  but  since  1892  have  been  treated 
as  being  a  Court  of  summary  jurisdiction  {Fourth  City,  etc.,  Building 
Society  v.  East  Ham  Churchwardens,  etc.,  [1892]  1  Q.  B.  361). 

Local  Limits. — Summary  jurisdiction  is  exercisable — 

(1)  In  respect  of  acts  done  within  the  district  for  which  the  justices  are 


700  SUMMAKY  JURISDICTION 

commissioned  and  acting,  i.e.  the  county  or  borough,  and  not  merely  the 
Petty  Sessional  Division,  unless  the  statute  limits  jurisdiction  by  reference  to 
the  latter  (Johnson  v.  Colam,  1875,  L.  R.  10  Q.  B.  544). 

This  does  not  exclude  the  jurisdiction  of  county  justices  in  a  borough 
unless  it  has  both  a  separate  commission  of  the  peace  and  a  Court  of  Quarter 
Sessions  (9  Geo.  i.  c.  7,  s.  3  ;  45  &  46  Vict.  c.  50,  s.  154).  Detached  portions 
of  counties  are  now  treated  as  lying  in  the  county  in  which  they  are  included 
for  parliamentary  elections,  and  alterations  of  a  county  under  the  Local 
Government  Acts  appear  to  apply  to  judicial  proceedings,  but  not  to  licensing 
jurisdiction  (E.  v.  Wm-cester shire  JJ.,  [1899]  1  Q.  B.  59,  61). 

(2)  In  respect  of  acts  done  (a)  on  water  running  between  or  bounding  the 
territories  allotted  to  two  distinct  commissions  of  the  peace  (1879,  c.  49, 
s.  46) ;  or  {b)  On  or  within  500  yards  of  the  boundary  of  two  such  territories 
(Midland  Rly.  Co.  v.  Freeman,  1884, 12  Q.  B.  D.  629) ;  or  (c)  On  a  carriage,  cart, 
or  vehicle  passing  through  the  territory  allotted  to  the  commission  (1879, 
c.  49,  s.  46). 

(3)  In  respect  of  indictable  offences  triable  summarily,  as  to  which  the 
Court  could  commit  for  trial  (1848,  c.  42,  s.  2  ;  1848,  c.  43,  s.  6  ;  1879,  c.  49, 
s.  45). 

(4)  In  respect  of  aiding  and  abetting  anywhere  offences  committed  within 
the  jurisdiction  of  the  justices  (1848,  c.  43,  s.  5). 

(5)  In  respect  of  offences  in  the  Admiralty  jurisdiction  which  are  sum- 
marily punishable,  see  Merchant  Shipping  Act,  1894,  57  &  58  Vict.  c.  60, 
ss.  681,  684-687. 

The  justices  may  exercise  jurisdiction  for  a  county,  etc.,  for  which 
they  are  commissioned,  while  actually  present  or  resident  in  another 
county  or  borough  next  adjoining  to  or  surrounded  by  the  county,  etc., 
for  which  they  are  commissioned  (1848,  c.  43,  ss.  6,  35 ;  1863,  c.  77). 

Summary  jurisdiction  may  be  exercised  by  a  single  justice  in  the 
following  cases : — 

(1)  On  receiving  an  information  or  complaint,  and  issuing  summons  or 
warrant  thereon  (1848,  c.  43,  s.  1). 

(2)  When  sitting  in  open  Court,  either  at  a  petty  sessional  court-house  or 
an  occasional  court-house,  if  he  does  not  impose  by  his  conviction  or  order  a 
sentence  of  imprisonment  exceeding  three  days,  nor  the  payment  of  a  sum 
exceeding  20s.,  in  respect  of  acts  or  offences  as  to  which  summary  jurisdic- 
tion exists  under  the  Summary  Jurisdiction  Act,  1879,  or  prior  Acts  (see  42 
&  43  Vict.  c.  49,  8.  20  (1),  (2),  (4),  (5),  (7),  (9) ;  52  &  53  Vict.  c.  63,  s.  13  (13)). 

(3)  In  particular  cases  where  the  power  is  specifically  given  by  statute  to 
a  single  justice. 

(4)  To  adjourn  till  the  next  practicable  sitting  of  a  Petty  Sessional 
Court,  cases  on  which  he  cannot  adjudicate  alone,  or  does  not  think  it 
proper  to  adjudicate  alone  (s.  20  (11)). 

In  all  other  cases  it  must  be  exercised  by  a  Petty  Sessional  Court. 

The  jurisdiction,  as  already  stated,  falls  under  two  heads — 

(1)  Criminal,  i.e.  in  cases  which  have  been  discussed  under  the  head 

Criminal  Cause  or  Matter,  and  in  which  the  proceedings  are  begun  by 

information  and  conclude  wdth  a  conviction. 

These  fall,  roughly  speaking,  into  the  classification — (i.)  Offences  origin- 
ally indictable  which  may  be  dealt  with  by  a  Petty  Sessional  Court  without 
committal  for  trial. 

(ii.)  Acts  amounting  to  public  nuisance  which  by  statute  may  be  dealt 
with  without  the  delay  incident  to  indictment. 

(iii.)  Petty  misdemeanors  or  infractions  of  rules  of  police,  which,  under 
the  French  law,  are  styled  contraventions. 


SUMMARY  JUEISDICTION  701 

(2)  Civil  or  quasi-civil,  in  which  the  proceedings  are  commenced  by 
complaint  and  conclude  with  an  order. 

The  most  important  of  these  civil  or  quasi-civil  matters  are — 

(a)  Affiliation  cases.  Bastardy  proceedings  are  excepted  for  certain 
purposes  from  this  mode  of  procedure  (1879,  c.  49,  s.  54),  but  are  not 
criminal  matters  {B.  v.  Farmer,  [1892]  1  Q.  B.  637). 

(b)  Separation,  etc.,  orders  for  the  maintenance  of  married  women  who 
have  been  ill-treated  or  deserted. 

(c)  Disputes  between  employer  and  employes  and  apprentices. 

(d)  Proceedings  for  demolition  of  buildings  or  abatement  of  nuisances,  as 

distinct   from   proceedings   to   punish    their   erection,   or  fine   for 
creating  a  nuisance. 

1.  Criminal  Matters. — ^The  matters  with  respect  to  which  justices 
have  power  to  make  summary  convictions  or  orders  are  of  enormous 
variety,  depending  on  many  statutes  (see  Stone,  Justices'  Manual,  40th 
ed. ;  Oke's  Magisterial  Synopsis)  and  an  untold  variety  of  regulations 
made  by  departments  of  State,  and  of  by-laws  made  by  local  authorities 
(in  either  case  under  statutory  powers),  for  which  reference  must  be 
made  to  collections  of  statutory  rules  or  to  the  authorities  for  the 
districts  to  which  the  regulations  or  by-laws  apply. 

A  person  accused  of  an  ofifence  punishable  on  summary  conviction 
(which  is  not  an  assault)  is  entitled  to  elect  to  be  tried  by  a  jury  in  the 
following  cases : — 

(a)  Where  he  is  liable  on  conviction  to  imprisonment  in  the  first  instance 
without  the  option  of  a  fine  for  over  three  months  (1879,  c.  49,  s.  17  ;  Carle 
v.  Elkingim,  1892,  40  W.  R.  510;  Williarm  v.  Wynne,  1888,  57  L.  J.  M.  C. 
30).  This  provision  applies  to  persons  prosecuted  under  the  Betting  Acts 
{R.  v.  Brcyum,  [1895J  1  Q.  B.  119). 

{b)  Under  the  Explosives  Act,  1875,  where  the  defendant  is  liable  to  a 
penalty  exceeding  £100,  exclusive  of  forfeiture  (38  &  39  Vict.  c.  17,  ss.  91, 
92,  94,  100). 

(c)  Under  the  Conspiracy  and  Protection  of  Property  Act,  1875,  38  &  39 
Vict.  c.  86,  8.  9 ;  and  see  Trade  Union.  A  full  list  of  the  offences  to 
which  the  rule  applies  is  given  in  Douglas's  Summary  Jurisdiction  Procedure, 
9th  ed. 

The  Court,  as  a  condition  precedent  to  its  right  to  try  summarily, 
must,  before  going  into  the  charge,  inform  the  defendant  of  his  right 
to  elect  to  be  tried  on  indictment  (1879,  c.  49,  s.  17  (2);  R.  v.  Cockshott, 
[1898]  1  Q.  B.  582).  Where  the  election  is  not  made,  the  procedure  is 
that  of  the  Summary  Jurisdiction  Acts.  Where  it  is  made,  the  justices 
hold  a  preliminary  inquiry  under  the  Indictable  Offences  Act,  1848,  and 
commit  for  trial  or  dismiss,  according  to  the  rules  laid  down  in  that 
Act.  The  costs  of  prosecution  are  payable  as  in  felony  (see  Costs  in 
Criminal  Proceedings).  The  indictment  need  not  state  the  fact  of  the 
election  by  the  accused  {R.  v.  Chambers,  1896,  65  L.  J.  M.  C.  214). 

A  petty  sessional  Court  is  empowered  to  deal  summarily  with 
indictable  offences  in  the  following  cases: — 

(a)  In  the  case  of  children  over  seven  and  under  twelve  accused  of 
any  indictable  offence  except  homicide  if  the  parent  or  guardian  does 
not  object  after  being  informed  by  the  Court  of  his  right  to  do  so 
(1879,  c.  49,  ss.  10,  49).  It  is  proposed  by  the  Children's  Bill,  1908, 
to  substitute  fourteen  for  twelve. 


702  SUMMARY  JURISDICTION" 

(b)  In  the  case  of  young  persons,  i.e.  over  twelve  and  under  sixteen, 
if  they  consent,  in  the  case  of  all  offences  except  homicide  (1879,  c.  49, 
s.  11 ;  1899,  c.  22,  s.  11).  It  is  proposed  by  the  Children's  Bill,  1908,  to 
substitute  fourteen  for  twelve. 

(c)  In  the  case  of  adults  or  persons  of  sixteen  or  over,  if  they 
consent  to  be  tried  summarily,  and  the  offence  is  one  specified  in 
column  2  of  the  said  first  schedule  as  amended  in  1899  and  1908.  The 
offences  in  question  are  simple  larceny  or  offences  punishable  by  statute 
as  such,  stealing  from  the  person,  larceny  or  embezzlement  by  a  clerk  or 
servant,  and  aiding,  abetting,  counselling,  procuring,  or  attempting  to 
commit  any  of  the  above-named  offences,  receiving  stolen  goods  within 
24  &  25  Vict.  c.  96,  ss.  91,  95  (1879,  c.  49,  s.  12),  obtaining  or  attempt- 
ing to  obtain  property  by  false  pretences,  and  offences  against  sec.  16  of 
the  Malicious  Damage  Act,  1861  (1899,  c.  22),  and  indecent  assault  on 
a  person  of  either  sex  who  in  the  opinion  of  the  Court  is  under  sixteen 
(1908). 

The  jurisdiction  does  not  attach  if  the  offender,  owing  to  a  previous 
conviction  or  indictment,  is  liable  to  be  sent  to  penal  servitude  (1879, 
c.  49,  s.  14),  and  except  in  the  case  of  indecent  assault  is  limited  to 
cases  where  the  property  or  damage  does  not  exceed  40s.  in  value  or 
amount,  and  the  charge  is  suited  for  summary  trial. 

(d)  In  the  case  of  adults  pleading  guilty  of  the  above  offences,  except 
indecent  assault,  irrespective  of  the  value  or  amount  of  the  property, 
but  subject  to  the  provision  above  stated  as  to  previous  convictions  and 
the  suitability  of  the  case  for  summary  trial  (1879,  c.  49,  ss.  13,  14; 
1899,  c.  22). 

In  each  of  these  cases  it  is  a  condition  precedent  to  the  right  to  try 
summarily  that  the  accused,  or  the  parent  or  guardian  in  the  case  of 
children,  should  be  informed  of  the  right  to  decline  summary  trial, 
and  should  elect  to  be  summarily  tried  or  dealt  with. 

The  procedure  after  such  election  is  as  in  the  case  of  summary  juris- 
diction cases ;  but  the  conviction  must  be  before  a  petty  sessional  Court, 
subject  to  the  right  to  use  on  the  summary  trial  depositions  taken  before 
the  election  (1879,  s.  27).  In  the  event  of  acquittal,  the  accused  is  entitled 
to  a  certificate  of  dismissal  (1879,  s.  27  (4)). 

Costs. — The  costs  of  the  prosecution  may  be  certified  for  payment  out 
of  the  local  rate  under  the  Costs  in  Criminal  Cases  Act,  1908,  8  Edw. 
VII.  c.  15. 

Punishment. — The  punishments  which  may  be  imposed  are  as 
follows : — 

(i.)  In  the  case  of  adults  pleading  guilty  to  offences  involving 
property  worth  over  40s.,  imprisonment  not  exceeding  six  months 
(s.  13),  without  the  option  of  a  fine,  subject  to  the  Probation  of 
Offenders  Act,  1907. 

(ii.)  In  the  case  of  adults  consenting  to  be  tried  summarily  or 
pleading  guilty  to  an  offence  affecting  property  not  worth  over  40s., 
imprisonment  for  not  over  three  months,  or  fine  not  exceeding  £20, 
recoverable  by  distress,  subject  to  a  power  to  imprison  in  default  of 
sufficient  distress.  In  the  case  of  indecent  assault  on  a  person  under 
sixteen  the  maximum  is  six  months  (Children  Act,  1908). 

(iii.)  In  the  case  of  young  persons,  imprisonment  for  not  over  three 
months,  or  fine  not  exceeding  £10,  recoverable  by  distress,  subject  to  a 
power  to  imprison  in  default  (and  see  Whipping). 

(iv.)  In  the  case  of  children,  fine  not  exceeding  40s.  (see  also 
Whipping). 


1 


SUMMAEY  JURISDICTION  703 

Now,  by  the  recent  Children  Act,  1908,  a  child  may  not  be  sen- 
tenced to  imprisonment  for  any  offence  or  committed  to  prison  for 
non-payment  of  a  fine,  or  damages,  or  costs  (s.  102  (1)),  and  a  young 
person  may  not  be  sentenced  to  imprisonment  for  an  offence,  or  com- 
mitted to  prison  in  default  of  payment  of  a  fine,  damages,  or  costs, 
unless  the  Court  certifies  that  the  young  person  is  of  so  unruly  a 
character  that  he  cannot  be  detained  in  a  place  of  detention  under  the 
Act,  or  that  he  is  of  so  depraved  a  character  that  he  is  not  a  fit  person 
to  be  so  detained  (s.  102  (3)). 

For  imprisonment  of  youthful  offenders  (between  twelve  and  six- 
teen) is  substituted  commitment  to  certified  reformatory  schools  (s.  58). 
Children  apparently  of  twelve  or  thirteen,  on  a  first  conviction,  may  in 
certain  cases  be  sent  to  certified  industrial  schools  (s.  59  (3)).  See 
Youthful  Offendees. 

If  the  offence  is  trifling,  the  accused  may  be  discharged  without 
punishment  under  the  Probation  of  Offenders  Act,  1907. 

Procedure — Criminal  Matters. — Summary  jurisdiction  is  exercised  on 
information  laid  as  to  the  commission  of  an  offence.  Any  person  may 
lay  it  unless  otherwise  provided  by  the  Act  creating  the  offence.  It 
must  be  laid  within  six  months  of  the  offence  (excluding  the  day  of  its 
commission;  1848,  c.  43,  s.  11;  Ellis  v.  Ellis,  [1896]  P.  251;  Radcliffe 
V.  Bartholomew,  [1892]  1  Q.  B.  161),  unless  (a)  the  offence  is  a  continuing 
offence,  in  which  case  the  time  is  computed  from  any  day  within  the  six 
months  on  which  the  offence  continued  {London  County  Coun/iil  v.  Worley, 
1892,  71  L.  T.  487;  Reeves  v.  Yates,  1861,  31  L.  J.  M.  C.  31;  Paley, 
Summary  Convictions,  8th  ed.,  67 ;  or  unless  (5)  some  particular  statute 
gives  a  longer  or  shorter  period  of  limitation  (Douglas,  Summary  Juris- 
diction Acts,  9th  ed.).  Only  one  offence  ought  to  be  included  in  the 
information;  but  more  than  one  person  may  be  included,  e.g.  joint- 
offenders  or  a  principal  and  his  aiders  and  abettors.  The  offence  ought 
to  be  described  with  precision,  but  the  only  statutory  enactments 
regulating  its  form  and  contents  are  those  as  to  description  of  property 
(1848,  c.  43,  8.  4),  and  as  to  the  description  of  the  offence  and  the 
omission  of  exceptions,  exemptions,  etc.,  in  favour  of  the  accused  (1879, 
c.  49,  8.  39  (1)  (2)). 

The  information  if  a  summons  only  is  desired  may  be  oral  or  in 
writing,  and  need  not  be  on  oath;  if  a  warrant  is  desired,  it  must 
be  in  writing  and  on  oath  (1848,  c.  43,  s.  2).  It  may  be  laid  by 
the  informant  or  by  his  counsel  or  solicitor  or  other  person  authorised 
by  him,  and  corporations  are  "  persons  "  within  this  rule  (52  &  53  Vict, 
c.  63,  s.  2). 

If  the  information  appears  to  disclose  an  offence  the  justice  or 
justices  may,  subject  as  above  stated,  grant  a  summons  to  the  defendant 
to  attend  and  answer  the  charge  or  a  warrant  for  his  arrest.  The  form 
of  warrant  is  prescribed  by  the  Act  of  1848.  As  to  execution,  see 
Arrest;  Warrants. 

The  summons,  unless  otherwise  provided  by  particular  Acts,  must  be 
personally  served  by  the  constable  or  other  person  intrusted  with  it,  or 
left  with  some  person  for  the  defendant  at  his  last  or  most  usual  place  of 
abode  (1848,  c.  43,  s.  1 ;  i2.  v.  Farmer,  [1892]  2  Q.  B.  637).  It  must  also 
be  served  within  the  statutory  time,  if  any  prescribed  {Dixon  v.  Wills, 
1890,  25  Q.  B.  D.  249).  As  to  service  on  limited  companies,  see  Pearhs, 
Ghinston  &  Tee,  Ltd.  v.  Richardson,  [1902]  1  K.  B.  91. 

Service  by  post  is  only  allowed  in  a  few  cases  (Douglas,  Summary 


704  SUMMARY  JURISDICTION 

Jurisdiction  Acts,  9th  ed.).  There  is  no  necessity  to  back  a  summons 
for  service  in  England  outside  the  district  of  the  issuing  justices. 
Service  in  Scotland  is  regulated  by  44  &  45  Vict.  c.  24  {Berkeley  v. 
Thompson,  1885,  10  App.  Cas.  45). 

Service  may  be  proved  by  a  declaration  (1879,  c.  49,  s.  41)  or  by  the 
oral  evidence  of  the  officer. 

Where  {a)  the  defendant  is  arrested  and  brought  before  the  proper 
Court,  or  (6)  the  return  day  of  the  summons  arrives  and  the  defendant 
attends,  or  (c)  in  his  absence  proof  is  made  of  service  at  a  reasonable 
time  before  the  day,  the  case  proceeds.  In  case  (c)  the  Court  usually 
issues  a  warrant  of  arrest,  but  can  proceed  in  dbsentid  or  where  the 
defendant  is  represented  only  by  counsel  or  solicitor  (1848,  c.  43,  s.  13). 

Witnesses  not  attending  voluntarily  or  on  Crown  Office  subpoena 
may  be  required  to  attend  by  summons  or  brought  up  by  warrant  of 
the  justices.  The  summons  can  be  served  in  Scotland  (1848,  c.  43,  s.  7 ; 
1879,  c.  49,  s.  36 ;  1881,  c.  24). 

The  hearing  must  be  in  open  Court  (1848,  c.  43)  before  a  sufficient 
number  of  justices  qualified  to  act  and  not  affected  by  interest  or  bias. 
The  substance  of  the  information  is  stated,  and  if  a  plea  of  guilty  is  not 
made  evidence  is  taken  in  support  of  the  charge  and  in  answer  to  it, 
subject  to  cross-examination  by  the  informant  and  defendant  or  their 
respective  counsel  or  solicitors.  Defects  in  the  information  and  vari- 
ances between  it  and  the  proof  are  not  fatal  but  amendable.  Where  the 
offence  proved  is  other  than  that  stated,  proceedings  can  be  adjourned 
to  enable  the  defendant  to  make  proper  defence  to  the  charge  {R.  v. 
Hughes,  1879,  4  Q.  B.  D.  614).  Where  the  information  is  double,  tlie 
prosecutor  can  be  put  to  his  election  as  to  the  charge  on  which  he  will 
proceed  {Rogers  v.  Richards,  [1892]  1  Q.  B.  555).  As  a  general  rule, 
two  charges  may  not  be  heard  together  {R.  v.  Fry,  1898,  67  L.  J.  Q,  B. 
712).  The  evidence  is  not  taken  down  in  the  form  of  depositions;  but 
it  is  usual  to  take  minutes  of  it  in  serious  cases,  and,  in  the  opinion  of 
the  High  Court,  it  is  necessary  to  do  so  in  cases  under  the  Summary 
Jurisdiction  (Married  Women)  Act,  1895(58&59  Vict.  c.  39). 

After  hearing  all  the  evidence  and  the  defences  in  fact  and  in  law, 
and  any  pleas  to  the  jurisdiction,  such  as  hond-Jide  claim  of  right  or  title 
to  land,  the  Court  adjudicates  by  convicting  or  dismissing,  or  in  trifling 
cases  by  convicting  and  discharging,  without  punishment  (1879,  c.  49, 
s.  16). 

The  clerk  of  the  justices  keeps  a  minute  or  register  of  minutes  or 
memorandums  of  all  convictions,  which  is  open  to  public  inspection,  and 
draws  up  the  convictions  in  accordance  with  the  prescribed  or  usual 
forms,  and  also  any  certificate  of  dismissal  given  to  a  person  acquitted 
by  the  Court  (1848,  c.  43,  s,  14 ;  see  Summaey  Conviction). 

In  the  event  of  conviction,  the  punishment  is  that  prescribed  by  the 
Acts  dealing  with  the  offence,  subject  to  the  right  of  the  Court  to  treat 
the  case  as  trivial  or  to  mitigate  penalties  except  where  the  offence  is 
against  the  revenue. 

Convictions  may  include  a  specified  sum  for  costs.  Fines  and  costs 
are  enforced  by  distress.  The  prosecutor  may  be  ordered  to  pay  costs, 
which  are  then  recoverable  as  a  civil  debt  (1848,  c.  43,  s.  18;  1879, 
c.  49,  ss.  35,  47  ;  Ex  parte  Boaler,  [1893]  2  Q.  B.  146). 

2.  Procedure  in  Civil  Matters. — The  procedure  in  exercise  of  civil  juris- 
diction is  in  substance  the  same  as  in  criminal  cases,  except  that  (1)  it  is 
begun  by  complaint ;  (2)  no  warrant  can  be  issued  in  the  first  instance 


SUMMARY  JURISDICTION  (MARRIED  WOMEN)  ACT,  1895    705 

or  for  non-appearance ;  (3)  it  concludes  by  an  order ;  (4)  orders  made 
to  pay  money  are  not  enforceable  by  imprisonment  except  in  the  cases  in 
which  they  would  be  so  enforceable  under  the  Debtors  Act,  1869  (1879, 
c.  49,  s.  35) ;  (5)  orders  to  do  or  abstain  from  an  act  are  enforceable  by 
imprisonment  (1879,  c.  49,  s.  34);  (6)  costs  payable  under  the  order 
are  recoverable  as  a  civil  debt  (1879,  c.  49,  s.  6). 

Appeal. — See  Quaeter  Sessions,  Vol.  XIL  p.  163. 

[^Authorities.  —  Oke,  Magisterial  Synopsis  and  Formulist ;  Stone, 
Justices'  Manual,  40th  ed. ;  Douglas,  Summary  Jurisdiction  Procedure, 
9  th  ed. ;  Paley,  Summary  Convictions,  8  th  ed. ;  Met.  Police  Guide,  4th 
ed.,  1906.] 

Summary  Jurisdiction  (Married  Women)  Act, 

1895. — Under  the  provisions  of  this  Act  (58  &  59  Vict.  c.  39)  any 
married  woman  may,  if  her  husband  has  been  guilty  of  any  of  the  offences 
enumerated  in  sec.  4  of  the  Act  (desertion,  cruelty,  neglect  to  maintain), 
or  if  he  is  an  habitual  drunkard  within  the  meaning  of  sec.  3  of  the 
Habitual  Drunkards  Act,  1879  (see  also  the  Licensing  Act,  1902, 
2  Edw.  VII.  c.  28,  s.  5  (1)),  apply  to  a  Court  of  Summary  Jurisdiction 
for  an  order. 

Under  sec.  5  of  the  Act  the  Court  may  decree — 

(1)  What  is  practically  a  judicial  separation. 

(2)  That  the  mother  be  granted  the  legal  custody  of  the  children. 

(3)  That  the  mother  have  maintenance  not  exceeding  £2  per  week. 

(4)  Such  order  as  to  costs  seems  just. 

By  sec.  7  any  order  may  be  altered,  varied,  or  discharged  on  fresh 
evidence.  As  to  what  is  fresh  evidence  within  the  meaning  of  the  section, 
see  Johnson  v.  Johnson,  [1900]  P.  19 ;  and  magistrates  have  power  to 
rescind  orders  on  the  grounds  there  laid  down,  such  applications  being 
on  the  same  footing  as  applications  for  new  trials  {Weightman  v. 
Weightman,  1906,  22  T.  L.  R.  362). 

By  resumption  of  cohabitation  an  order  is  at  once  discharged 
{Williams  V.  Williams,  [1904]  P.  145;  73  L.  J.  P.  31;  68  J.  P.  188). 
It  is  also  discharged  by  the  wife's  adultery,  and  this  quite  irrespective 
of  the  fact  that  the  husband's  conduct  has  conduced  to  that  adultery 
(Buther  v.  Ruther,  [1903]  2  K.  B.  270).  So,  too,  an  order  made  against 
a  man  who  had  gone  tlirough  a  form  of  marriage  with  a  woman  is 
discharged  if  the  woman's  first  husband  was  actually  alive  at  the 
time  of  the  ceremony,  as  legally  the  relationship  between  the  parties 
is  voluntary  (Oroves  v.  Groves,  1907,  71  J.  P.  167). 

Where  proceedings  are  pending  in  the  Divorce  Division  of  the  High 
Court  between  husband  and  wife,  justices  ought  not  to  entertain  any 
application  by  the  wife  against  her  husband  under  the  Act  (Craxton  v. 
Crax,ton,  1907,  71  J.  P.  399 ;  23  T.  L.  R.  527). 

Arrears  of  maintenance  are  enforceable  in  the  same  manner  as  the 
payment  of  money  is  enforced  under  a  bastardy  order.  As  to  the 
recovery  of  sums  payable  under  such  orders,  see  the  Summary  Juris- 
diction Act,  1879,  ss.  35  and  47,  and  Bastardy  herein. 

The  defendant  must  be  summoned  (as  for  a  civil  debt)  before  the 
Court  of  Summary  Jurisdiction,  and  a  formal  order  made  for  what  arrears 
are  owing.  If  this  order  be  disobeyed,  and  if  the  defendant  has  means 
to  pay,  he  may  be  sent  to  prison  for  a  term  not  exceeding  six  weeks. 
These  arrears  are  a  debt,  and  cannot  be  varied  by  the  Court. 

Appeals  both  on  fact  and  law  lie  to  the  Probate  Division  of  the 
VOL.  XIII.  45 


706  SUMMING  UP  , 

High  Court,  and  the  procedure  is  regulated  by  E.  S.  C,  Order  59, 
rr.  4a,  7,  8,  10,  11,  12,  16.  As  to  costs  on  appeal,  see  Medway  v. 
Medway,  [1900]  P.  141 ;  Davies  v.  Davies,  1907,  51  Sol.  Jo.  412.  There 
is  no  appeal  to  Quarter  Sessions.  Views  taken  by  the  Divorce  Court  on 
questions  of  adultery,  cruelty,  cohabitation,  etc.,  are  binding  on  justices. 

Justices  must  state  the  reasons  for  their  decisions,  and  their  clerk 
should  take  full  and  careful  notes  of  the  evidence.  Parties  are  entitled 
to  copies  of  these  notes,  which  are  essential  for  appeal  purposes  {Cohb 
V.  Cohh,  [1900]  P.  145 ;  69  L.  J.  P.  52 ;  Barker  v.  Barker,  [1905]  W.  K  70 ; 
74  L.  J.  P.  74 ;  69  J.  P.  82,  192),  and  the  costs  of  the  copies  will  be 
allowed  on  taxation  {Walton  v.  Walton,  [1900]  P.  147).  The  procedure 
for  enforcing  payment  of  arrears  (sec.  9  of  the  Act)  is  regulated  by  sec.  4 
of  the  Bastardy  Laws  Amendment  Act,  1872,  and  any  order  made  as  to 
arrears  is  not  an  order  under  sec.  11  of  the  Act  of  1895.  Hence,  on  this 
matter,  a  case  may  be  stated  for  the  opinion  of  the  Divisional  Court 
{Ruther  V.  Buther,  [1903]  2  K.  B.  270). 

Desertion. — To  constitute  "  desertion  "  there  must  have  been  an  active 
withdrawal  from  cohabitation  without  the  wife's  consent ;  but  husband 
and  wife  need  not  have  been  living  under  the  same  roof  at  the  date  of 
desertion  (Bradshawv.  Bradshaw,  [1897]  P.  24);  desertion  does  not  include 
refusal  to  resume  cohabitation  after  separation  by  consent  {R.  v.  Leresche, 
[1891]  2  Q.  B.  418);  but  does  after  refusal  to  cohabitate  following  tem- 
porary separation  for  mutual  convenience  (Chudley  v.  Chudley,  1893, 
69  L.  T.  617  ;  17  Cox  C.  C.  697).  Mere  separation  does  not  constitute 
desertion,  and  the  husband  must  have  the  opportunity  of  showing  that 
he  has  a  reasonable  excuse  for  his  action  {Frowd  v.  Frowd,  [1904] 
P.  177  ;  73  L.  J.  P.  60  ;  68  J.  P.  436).  After  an  order  of  the  justices 
granting  separation  there  can  be  no  "  legal  desertion "  upon  which, 
together  with  adultery,  a  wife  can  found  a  petition  for  divorce  {Taylor 
v.  Taylor,  1907,  23  T.  L.  E.  566). 

Persistent  Cruelty. — See  for  definition  of  the  term,  Russell  v.  Russell, 
[1895]  P.  315 ;  [1897]  A.  C.  395. 

,  Wilful  Neglect. — In  this  respect  the  earnings  of  the  husband  are 
material  and  must  be  taken  into  account  when  the  amount  of  mainten- 
ance is  considered  {Earnshaw  v.  Earnshaw,  [1896]  P.  160). 

[^Authorities. — Stone's  Justices'  Manual  (yearly),  sub  tit.  "  Husband 
and  Wife;"  Martin's  Law  of  Maintenance  and  Desertion  ;  and  Lushington's 
Summary  Jurisdiction  {Married  Women)  Act,  1895.] 

Summing  Up. — See  Denman's  (Mr.)  Act;  Jury;  Prosecu- 
tion; Trial. 

Summons. — Interlocutory  applications  at  chambers  are  made 
either  ex  parte  or  by  summons.  A  summons  is  a  citation  or  notice  pre- 
pared by  the  applicant  or  his  solicitor  in  the  form  given  in  Appendix  K 
to  the  E.  S.  C,  with  such  variations  as  circumstances  may  require, 
which,  after  being  sealed  in  Chancery  Chambers  or  the  Central  Office 
or,  in  Admiralty  actions,  in  the  Admiralty  Eegistry,  is  served  upon  the 
opposite  party,  requiring  him  to  appear  before  the  judge  or  Master  in 
chambers  on  the  return  day  at  the  hearing  of  the  application  specified. 
Summonses  other  than  originating  summonses  (as  to  which,  see  Origi- 
nating Summons)  have  to  be  served  two  clear  days  before  the  return 
thereof,  but  summonses  for  time  only  may  be  served  on  the  day  pre- 
vious to  the  return  day,  and  this  applies  to  a  notice  for  further  directions 


SUNDAY  707 

under  Order  30,  r.  5,  where  it  asks  for  time  only.  There  are  three  kinds 
of  summonses,  however,  as  to  which  longer  service  is  necessary,  namely, 
summonses  for  leave  to  enter  final  judgment  under  Order  14;  sum- 
monses for  directions  (see  Directions,  Summons  for);  and  summonses 
for  orders  for  private  sales  (Order  43,  r.  10).  In  these  cases  a  copy  of 
the  summons  must  be  served  four  clear  days  before  the  day  on  which 
the  summons  is  made  returnable.  All  matters  upon  which  the  party 
desires  the  order  or  direction  of  the  Court  or  judge  may  be  included  in 
one  summons.  Now,  practically  all  interlocutory  matters  are  dealt  with 
on  the  summons  for  directions. 

In  King's  Bench  Division  time  summonses  are  returnable  at  10.30 
A.M.,  and  are  not  entered  in  a  list ;  other  summonses  are  put  in  a  list 
(which  distinguishes  those  to  be  attended  by  counsel  from  those  not  to 
be  80  attended),  and  made  returnable  at  successive  hours  commencing  at 
11  A.M.  At  the  hour  fixed,  the  list  is  called  and  the  summonses  are 
heard ;  if  on  the  first  calling  one  of  the  parties  to  a  summons  is  not 
present,  the  summons  is  called  a  second  time  after  the  list  has  been 
gone  through,  whereupon  if  the  party  is  still  absent,  the  matter  may  be 
dealt  with  in  his  absence.  In  such  a  case  the  usual  practice  is  to  make 
the  order  subject  to  proof  of  service  being  given  before  it  is  passed.  If 
neither  party  is  present  at  the  second  calling  of  the  list,  the  summons 
is  struck  out.  Formerly  the  judge  in  chambers  could  adjourn  a  summons 
into  Court,  but  this  practice  ceased  when  the  appeals  from  chambers  in 
matters  of  practice  and  procedure  were  transferred  from  the  Divisional 
Court  to  the  Court  of  Appeal  (see  Appeals,  and  see  generally  as  to 
chamber  business  Orders  54,  55 ;  Daniell's  Chancery  Practice  and  Forms  ; 
Archbold's  Practice  at  Judges  Chambers ;  Chitty's  Forms). 

As  to  writs  of  summons,  see  Writ  of  Summons  ;  and  as  to  summonses 
in  criminal  matters,  see  Summary  Jurisdiction.  See  also  Chambers, 
Chancery  Division  ;  Chambers,  Judges'. 

Sunday. — l.  Sunday  is  a  dies  non  for  the  sitting  of  Courts 
{Mackalleys  Case,  1611, 9  Co.  Kep.  66  6)  or  the  meetings  of  public  bodies. 
A  contract  made  and  completed  on  Sunday  is  void  (see  Chit.  Stat.,  5th 
ed.,  vol.  xii.,  tit.  "  Sunday  ").  Process  may  not  be  served  nor  persons 
arrested  except  for  crime  (29  Chas.  ii.  c.  7,  s.  6;  11  &  12  Vict.  e.  42, 
s.  4;  Rawlins  v.  Ellis,  1849,  16  Mee.  &  W.  172;  73  R.  R  451). 

This  exception  extends  to  attachments  for  rescue  or  warrants  for 
escape  even  on  civil  process  {Anon.,  1744,  Willes,  459 ;  Moore's  Case, 
1705,  2  Raym.  (Ld.)  1028;  Atkinson  v.  Jameson,  1792,  5  T.  R.  25);  but 
apparently  not  to  commitments  for  penalties  {R.  v.  Myers,  1786,  1  T.  R. 
265 ;  1  R.  R.  199).  Prisoners  whose  term  would  expire  on  a  Sunday  are 
discharged  on  the  previous  Saturday  (61  &  62  Vict.  c.  41,  s.  12);  and 
by  the  Prison  Rules,  1899,  r.  16,  it  is  provided  that  no  payment  by  a 
prisoner  in  part  satisfaction  of  the  sum  adjudged  to  be  paid  by  him  in 
order  to  obtain  the  remission  of  part  of  his  imprisonment,  under  sec.  9 
of  the  Prison  Act,  1898,  shall  be  made  on  a  Sunday ;  and  see  Sunday  in 
Computation  of  Time. 

2.  Abstention  from  work  and  even  from  play  on  "  the  Lord's  Day," 
called  Sunday,  is  required  under  penalty  by  a  series  of  statutes  which 
•continue  in  force. 

An  Act  of  1448  (27  Hen.  vi.  c.  5)  prohibits  fairs  on  Sundays. 

An  Act  of  1627  (1  Chas.  i.  c.  1)  prohibits  meetings  of  people  out  of 
their  own  parishes  for  common  plays  or  unlawful  sports  on  Sunday. 


708  SUNDAY 

An  unsuccessful  attempt  to  enforce  it  was  made  in  1897  (see 
Games). 

An  Act  of  1629  (3  Chas.  i.  c.  2)  forbids  carriers  to  travel  and 
butchers  to  kill  or  sell  on  Sunday  (see  Butcher). 

An  Act  of  1677  (29  Chas.  ii.  c.  7)  forbids  the  exercise  by  any  trades- 
man, artificer,  workman,  labourer,  or  other  persons  whatsoever  ejusdem 
generis  (H.  v.  Silvester,  1864,  33  L.  J.  M.  C.  79),  to  do  or  exercise  on 
Sunday  any  worldly  labour,  business,  or  work,  of  his  ordinary  calling, 
works  of  necessity  or  charity  only  excepted.  Selling  a  horse  or  hiring 
a  servant  or  enlisting  a  soldier  have  been  held  not  to  be  within  the 
prohibition.     The  Act  also  forbids — 

(1)  Public  crying,  showing  forth,  or  exposing  for  sale,  wares,  mer- 
chandises, etc.,  on  pain  of  forfeiture.  This  has  been  enforced  against 
newspaper  vendors.  Drivers  of  fish  carriages  in  London  and  West- 
minster were  exempted  from  it  in  1761  (29  Geo.  in.  c.  15,  s.  7). 

(2)  Travelling  by  drivers,  butchers,  waggoners,  and  higglers,  and 
also  travel  by  boat,  except  on  an  excuse  allowed  by  justices.  This  is 
partly  repealed  by  a  local  Act  (7  &  8  Geo.  iv.  c.  Ixxv.  ss.  1,  3).  People 
who  were  robbed  while  travelling  on  the  Lord's  Day  could  not  claim 
compensation  from  the  hundred  (s.  5). 

Prosecutions  under  this  Act  must  be  within  ten  days  of  the  offence, 
and  may  not  be  executed  except  by  or  with  the  consent  in  writing  of 
the  chief  officer  of  police  for  the  district,  or  two  justices,  or  a  stipendiary 
magistrate  (1871,  c.  87,  s.  1 ;  1897,  c.  54).  The  consent,  which  must  be 
obtained  before  the  information  is  laid  (Thorpe  v.  Priestnall,  [1897] 
1  Q.  B.  159),  has  no  application  to  prosecutions  under  sec.  16  of  the 
Bread  Act,  1822,  for  selling  or  exposing  for  sale  bread  on  the  Lord's 
Day  {B.  v.  Mead,  [1902]  2  K.  B.  212).  An  exception  is  made  in  favour 
of  the  dressing  of  food  in  private  families,  and  the  dressing  and  sale  of 
meat  in  inns,  cook-shops,  or  victualling-houses,  and  the  crying  or  selling 
of  milk  before  9  and  after  4  (1677,  s.  3).  Bread  may  not  be  baked  on 
Sundays  by  bakers.  It  may  be  delivered  till  1.30,  and  the  shops  may 
be  opened  from  9  till  1  for  sale  of  bread  and  baking  of  the  Sunday 
dinners  of  the  poor  (3  Geo.  iv.  c.  cvi. ;  6  &  7  Will.  iv.  c.  37,  s.  16;  and 
see  R.  V.  Cox,  1759,  2  Burr.  785 ;  and  Bullen  v.  Ward,  1905,  74  L.  J. 
K.  B.  916).  Inns,  etc.,  are  now  subject  to  the  Licensing  Acts  as  to  sale 
during  prohibited  hours  except  to  the  hond-fide  traveller  (see  Licensing). 
Similar  provisions  apply  to  Billiard  Saloons,  PtEFRESHMENX  Houses 
{Duffell  V.  Curtif,  1876,  35  L.  T.  853),  and  Pawnbrokers  (and  it  is 
unlawful  for  anyone  to  be  employed  on  Sunday  in  glass  works  (1878, 
c.  16,  s.  60 ;  1895,  c.  37,  s.  14  (6)),  or  in  a  factory,  except  in  the  case  of 
creameries  where,  by  special  order,  the  Secretary  of  State  may  allow 
the  employment  of  women  and  young  persons  for  not  more  than  three 
hours  (1901,  c.  22,  s.  42),  and  except  a  Jew  by  another  Jew  (1901,  c.  22, 
s.  48).  Such  factory  must  not  be  open  for  traffic  (1901,  c.  22,  s.  48 ;  and 
Goldstein  v.  Vaughan,  [1897]  1  Q.  B.  549). 

By  an  Act  of  1781  (21  Geo.  in.  c.  49)  it  is  made  illegal  to  open  or 
use  any  house  for  public  entertainment  or  amusement  or  for  public 
debate  on  Sunday  if  admission  is  by  payment  of  money  or  tickets  sold 
for  money.  The  penalties  are — (1)  Forfeiture  of  £200,  recoverable 
by  action  (ss.  1,  4);  and  (2)  proceedings  as  for  keeping  a  disorderly 
house. 

The  persons  liable  are  the  keeper,  manager,  conductor,  or  master  of 
the  ceremonies,  moderator,  chairman,  or  president,  and  also  doorkeepers 


1 


SUNDAY  IN  COMPUTATION  OF  TIME  709 

and  servants;  but  not  a  solicitor  who  lets  the  place,  nor  a  chairman 
who  merely  introduces  a  lecturer  {Keid  v.  Wilson,  [1895]  1  Q.  B.  312). 
The  forfeiture  can  be  reduced  or  remitted  by  the  Crown  (1875,  c.  80, 

8.  1). 

Advertising  such  entertainments  or  printing  the  advertisements 
entails  a  penalty  of  £50  (ss.  3,  4), 

The  Act  does  not  apply  to  registered  places  of  worship  (s.  8 ;  Baxter 
v.  Langley,  1869,  L.  E.  4  C.  P.  21),  but  applies  to  all  Sunday  exhibi- 
tions where  money  is  taken  {Terry  v,  Brighton  Aquarium  Co.,  1875, 
L.  K.  10  Q.  B.  306;  Warner  v.  Same,  1875,  L.  R.  10  Ex.  291).  It 
is  now  usually  evaded,  e.g.  at  the  Albert  Hall  and  Queen's  Hall,  by 
giving  free  admission  and  charging  for  reserved  seats. 

Actions  under  the  Act  are  penal,  and  may  be  brought  by  common 
informer  within  six  mouths  of  the  offence  (s.  5).  The  provisions  of 
sec.  7  as  to  pleading  and  costs  are  abrogated  by  the  Public  Authori- 
ties Protection  Act,  1893,  56  &  57  Vict.  c.  61.  Collusive  actions  are 
ineffectual  (4  Hen.  vii.  c.  20;  Girdlestone  v.  Brighton  Aquarium  Co., 
1878,  3  Ex.  D.  137). 

Sunday  in  Computation  of  Time— The  absence  of 

any  settled  plan  in  making  statutory  regulations  with  regard  to  com- 
putation of  time  is  nowhere  more  marked  than  in  the  treatment  of 
Sundays.  In  dealing  with  its  inclusion  or  exclusion  in  computing 
periods  of  time,  it  is  not  easy  to  say  which  is  the  rule  and  which  are 
the  exceptions,  for  not  only  are  there  exceptions  to  both  its  inclusion 
and  its  exclusion,  but  there  are  in  both  cases  exceptions  to  those 
exceptions. 

Sunday  indvded. — Where  the  time-fixture  exceeds  seven  days,  and 
where  it  does  not  expire  on  a  Sunday,  the  Sundays  included  in  it  are 
(except  in  divorce  proceedings)  counted  in  computing  the  time.  In 
some  cases,  moreover,  Sunday  is  counted  even  when  it  is  the  last  day 
of  the  time  fixture.     See,  as  to  this,  Sunday  the  last  Day,  infra. 

Sunday  excluded. — In  the  High  Court  and  bankruptcy,  where  any 
time-fixture  is  less  than  six  days,  Sunday  is  excluded  (Rules  of  the 
Supreme  Court,  1883,  Order  64,  r.  2;  Bankruptcy  Rules,  1886-1890, 
r.  4  (2)).  Thus  a  time-fixture  of  five  days  from  a  Saturday  would  begin 
on  the  Monday  following  and  terminate  on  the  Friday. 

In  County  Court  matters,  if  the  time-fixture  does  not  exceed  forty- 
eight  hours,  Sunday  is  excluded  (County  Court  Rules,  1903,  1904,  Order 
54,  r.  17). 

In  divorce  causes  the  rule  is  to  exclude  Sundays  altogether  from 
computation  (Divorce  Rules,  1865,  r.  123). 

In  computing  any  time  fixed  by  the  Municipal  Corporations  Act, 
1882,  45  &  46  Vict,  c,  50,  where  the  time-fixture  does  not  exceed  seven 
days,  Sunday  is  excluded  from  the  computation  (see  s.  230). 

Sunday  the  last  Day. — In  proceedings  in  the  High  Court,  including 
bankruptcy  and  divorce  matters,  when  the  last  day  of  any  time-fixture 
falls  on  a  Sunday,  the  time  must  be  computed  so  as  to  include  the  next 
following  working  day  (Rules  of  the  Supreme  Court,  1883,  Order  64, 
r.  3 ;  Bankruptcy  Act,  1883,  46  &  47  Vict.  c.  52,  s.  141 ;  Divorce  Rules, 
1865,  r.  123).  This  rule  applies  to  registration  of  a  Bill  of  Sale  or  deed 
of  arrangement,  and  also  to  any  time-fixture  under  the  Municipal 
Corporations  Act,  1882,  45  &  46  Vict.  c.  50,  s.  230. 

There  are,  however,  exceptions  to  this  rule  of  computation.    Under 


710  SUNDAY  SCHOOL 

the  Bills  of  Exchange  Act,  1882,  45  &  46  Vict.  c.  61,  s.  14  (1),  (a),  the 
rule  of  computation  is  somewhat  complicated  by  the  Bank  Holidays 
Act,  1871,  34  &  35  Vict.  c.  17,  and  Acts  amending  or  extending  the 
same.  When  the  last  day  of  grace  falls  on  Sunday  the  bill  or  note  is 
due  and  payable  on  the  preceding  business  day,  except  that  when  the 
last  day  of  grace  is  a  Sunday  and  the  second  day  of  grace  is  a  bank 
holiday,  under  the  Bank  Holidays  Acts  the  bill  or  note  is  payable  on 
the  succeeding  business  day.  In  fact  the  rule,  that  when  the  last  day 
of  the  time  to  do  any  act  falls  on  a  Sunday  the  time  extends  so  as  to 
include  the  next  working  day,  must  be  regarded  as  applying  only  to 
procedure  in  actions  and  matters  before  the  Courts,  and  not  as  adding 
an  extra  day  to  time  fixed  by  statute.  For  cases  on  this  point,  and 
generally  as  to  Sundays  in  computation,  see  Time,  Computation  of. 

Suncla,y  School. — Under  the  Sunday  and  Eagged  Schools 
(Exemption  from  Eating)  Act,  1869,  32  &  33  Vict.  c.  40,  Sunday 
schools  may  (the  power  is  discretionary,  see  Bell  v.  Crane,  1873,  L.  E. 
8  Q.  B.  481)  be  exempted  by  the  rating  authority  from  rates  for  the 
relief  of  the  poor,  etc.  A  Sunday  school  for  the  purpose  of  this  Act 
means — 

Any  school  used  for  giving  religious  education  gratuitously  to  children 
and  young  persons  on  Sunday ;  and  on  weekdays  for  the  holding  of  classes 
and  meetings  in  furtherance  of  the  same  object,  and  without  pecuniary  profit 
being  derived  therefrom  (s.  2). 

Sunrise  ;  Sunset. — An  almanack  is  not  evidence  of  the 
time  of  sunrise  or  sunset  on  a  particular  day  (per  Pollock,  C.B.,  in 
Tutton  V.  Barhe,  1860,  5  H.  &  N.  647;  per  Wilde,  C.J.,  in  Collier  v. 
Nokes,  1849, 2  Car.  &  Kir.  1012).  It  appears  to  be  doubtful  whether,  as 
a  matter  of  law,  the  time  of  sunrise  is  to  be  reckoned  from  the  first 
appearance  of  the  sun's  beams  above  the  horizon,  or  from  the  emerging 
of  the  entire  sun  {Tutton  v.  Darke,  supra).  In  sec.  85  of  the  Local 
Government  Act,  1888,  51  &  52  Vict.  c.  41,  which  enacts  that  during 
the  period  between  one  hour  after  sunset  and  one  hour  before  sunrise, 
every  person  riding  a  bicycle  shall  carry  attached  to  it  a  lighted  lamp, 
the  expression  "  sunset "  does  not  mean  sunset  according  to  Greenwich 
mean  time,  but  sunset  according  to  the  time  as  it  varies  at  different 
places  in  England  {Gordon  v.  Cann,  1899,  68  L.  J.  Q.  B.  434).  See 
further,  Greenwich  Mean  Time. 

Superannuation.— (1)  In  the  Civil  Service  provision  is 
made  for  the  compulsory  superannuation  of  civil  servants,  i.e.  their 
retirement  on  the  ground  of  age  from  the  public  service  at  sixty-five, 
unless  allowed  to  continue  longer.  Correlatively  provision  is  made  for 
paying  them  pensions  on  such  retirement.  The  compulsory  provisions 
do  not  extend  to  judges,  or  to  Masters  and  similar  officers  of  the  Supreme 
Court.  (2)  The  Police  Acts  provide  for  the  superannuation  and  pension- 
ing of  police  officers,  who  have  to  contribute  from  their  pay  towards 
their  superannuation  allowance.  The  fund  is  supplemented  by  an 
Exchequer  contribution  (53  &  54  Vict.  c.  45,  ss.  15-20;  c.  60,  ss.  1,  4). 
See  also  the  Police  Superannuation  Acts,  1890,  1893,  1906,  1908.  (3) 
Under  the  Prison  Acts,  prison  officials  are  liable  to  superannuation,  and 
entitled  thereon  to  pensions  computed  by  reference  to  length  of  service 


SUPERINTENDENT  EEGISTRAE  711 

(40  &  41  Vict.  c.  21,  ss.  36,  53  ;  49  &  50  Vict.  c.  9 ;  56  &  57  Vict.  c.  26 ; 
2  Edw.  VII.  c.  9).    See  also  Pensions. 

Supercarg'O  is  a  term  in  maritime  law  to  denote  a  person 
specially  employed  by  the  owner  of  a  cargo  to  take  charge  of  and  sell 
to  the  best  advantage  merchandise  which  has  been  shipped,  and  to  pur- 
chase returning  cargoes,  and  to  receive  freight  as  he  may  be  authorised ; 
and  he  has  complete  control  over  the  cargo  and  everything  concerned 
with  it,  unless  his  authority  is  expressly  or  impliedly  restrained  {Davidson 
V.  Gwynne,  1810,  12  East,  381,  396,  398;  11  R.  R.  420). 

[^Authorities. — Bouvier,  Lmv  Dictionary,  edited  by  F.  Rawle,  1898 ; 
Stroud,  Judicial  Dictionary,  2nd  ed.,  1903.] 

Super!  nstitution . — A  second  institution  to  a  church  already 
filled  by  institution  is  so  called.  Superinstitution  was  triable  in  the 
ecclesiastical  Courts,  unless  there  had  been  an  induction  upon  the  first 
institution.  The  mode  of  trying  a  title  by  superinstitution  has  fallen 
into  disuse  (Phillimore,  Eccl.  Law,  2nd  ed.,  vol.  i.  p.  358  ;  Cripps,  Church 
and  Clergy,  6th  ed.,  p.  467). 

Superintendent  Registrar.— The  officer  having  the 

superintendence  of  the  registration  of  births,  deaths,  and  marriages 
within  a  poor  law  union.  As  superintendent  registrar  of  births  and 
deaths,  he  is  appointed  by  the  guardians,  or,  on  default  being  made  by 
them,  by  the  Registrar-General,  and  by  virtue  of  that  appointment  he 
is  constituted  superintendent  registrar  of  marriages  for  the  union ;  but 
before  granting  any  licence  for  marriage  he  must  give  security  by  his 
bond  in  the  sum  of  £100  to  the  Registrar-General  for  the  due  and 
faithful  execution  of  his  office.  In  practice,  the  clerk  of  the  guardians,  if 
he  has  the  requisite  qualifications,  is  appointed  superintendent  registrar; 
but  sec.  7  of  the  Registration  Act,  1836,  6  &  7  Will.  iv.  c.  86,  gives  him  no 
legal  claim  to  the  appointment ;  that  section  only  gave  the  clerk  to  the 
guardians  at  the  passing  of  the  Act  the  right  to  the  appointment  {B.  v. 
Acason,  1862,  31  L.  J.  Q.  B.  227).  He  holds  his  office  during  the  pleasure  of 
the  Registrar-General  (see  Registrar-General,  where  the  general  scheme 
of  registration  is  dealt  with).  The  superintendent  registrar  receives 
and  preserves  the  register  books,  which,  when  filled,  are  forwarded  to 
him  by  clergymen,  registrars,  and  other  registering  officers;  makes 
returns  to  the  Registrar-General;  authenticates  certain  registrations 
not  made  within  the  proper  time ;  receives  notices  of  marriage ;  issues 
licences  (see  Licence  (Marriage))  and  certificates  for  marriage  (see 
Superintendent  Registrar's  Certificate)  ;  receives  and  adjudicates  on 
caveats  lodged  against  the  grant  of  licences  or  certificates;  attends 
marriages  which  are  celebrated  in  the  register  office,  and  signs  the 
register  (see  Solemnisation  of  Marriage).  Registrars  are  no  longer 
required  to  be  present  at  marriages  performed  in  Nonconformist  places 
of  worship  (Marriage  Act,  1898,  61  &  62  Vict.  c.  58,  s.  4).  As  to 
the  duties  of  the  superintendent  registrar  in  issuing  certificates,  etc., 
under  the  above  Act,  see  sec.  5,  ibid.  With  the  approval  of  the  Registrar- 
General,  a  superintendent  registrar  may,  by  writing  under  his  hand, 
appoint  a  person  to  act  as  his  deputy  in  case  of  his  illness  or  unavoid- 
able absence,  or  in  any  prescribed  case ;  such  deputy  holds  office  during 
the  pleasure  of  the  superintendent  registrar  appointing  him,  and  for  the 
acts  or  omissions  of  such  deputy  the  superintendent  registrar  is  civilly 


712       SUPERINTENDENT  EEGISTRAR'S  CERTIFICATE 

responsible.  Persons  guilty  of  offences  against  the  provisions  of  the 
Registration  Acts  may  be  prosecuted  by  the  superintendent  registrar  of 
the  district  within  which  the  offences  were  committed. 

Superintendent  Registrar's  Certificate.— Prior 

to  the  Marriage  Act,  1836,  6  &  7  Will.  iv.  c.  85,  marriages  could  only 
take  place  under  a  licence  granted  by  an  ecclesiastical  authority  (see 
Licence  (Marriage)),  or  after  publication  of  banns  (see  Banns  of 
Marriage),  but  by  the  statute  mentioned  it  was  enacted  that  marriage 
might  be  solemnised  under  authority  granted  by  the  superintendent 
registrar  of  marriages  (see  Superintendent  Registrar),  either  by  his 
licence  (as  to  which  see  Vol,  VIII.  p.  165)  or  his  certificate.  To  obtain 
such  a  certificate  certain  formalities  have  to  be  complied  with.  A 
notice  in  the  form  set  out  in  Sched.  A  to  the  Marriage  Registration 
Act,  1856,  19  &  20  Vict.  c.  119,  must  be  given  to  the  superintendent 
registrar  of  the  district  where  the  parties  applying  for  the  certificate  shall 
have  dwelt  for  not  less  than  seven  days  next  preceding,  or  if  the  parties 
dwell  in  different  districts,  similar  notices  must  be  given  to  the  super- 
intendent registrar  of  each  of  such  districts  (Act  of  1836,  s.  4).  The  notice 
describes  the  parties,  and  states  the  building  within  which  the  marriage 
is  to  be  celebrated,  and  it  must  further  contain  a  declaration  that  there 
is  no  lawful  hindrance  to  the  marriage  (Act  of  1856,  s.  2).  The  notice 
80  given  is  filed  by  the  superintendent  registrar,  who  also  enters  a  true 
copy  thereof  in  the  marriage  notice  book  he  is  required  to  keep,  and  in 
addition  he  affixes  a  copy  of  the  notice  in  his  office  for  twenty-one  days, 
to  give  public  intimation  of  the  intended  marriage.  At  the  expiration 
of  the  twenty-one  days,  the  certificate  is  issued  (see  form  in  Sched.  B 
to  Act  of  1856 ;  in  the  case  of  marriages  under  the  provisions  of  the 
Marriage  Act,  1898,  a  special  form  of  certificate  has  been  prepared, 
having  on  it  the  printed  instructions  for  the  due  solemnisation  of  the 
marriage  as  required  by  sec.  5,  subs.  2  of  that  Act),  unless  in  the  meantime 
its  issue  has  been  duly  forbidden  (Act  of  1856,  s.  9),  or  unless  a  caveat 
has  been  lodged  and  not  been  disposed  of  (s.  13).  The  certificate,  which 
is  available  for  three  calendar  months  from  the  date  of  the  entry  of  the 
notice,  may  be  issued  for  a  marriage  to  be  celebrated  in  any  church  or 
chapel  belonging  to  the  Church  of  England  within  the  superintendent 
registrar's  district,  if  the  parties  could  lawfully  have  been  married  therein 
after  publication  of  banns ;  but  it  should  be  noted  that  it  is  optional  for 
a  clergyman  of  the  Church  of  England  to  accept  the  certificate  in  lieu  of 
publication  of  banns.  It  may  also  be  issued  for  a  marriage  to  take  place 
in  a  registered  building  or  the  register  office  in  the  district  of  the  super- 
intendent registrar,  or  where  one  of  the  parties  resides  in  another  district, 
in  a  registered  building,  or  in  the  register  office  of  that  district,  or  in  a 
registered  building  out  of  the  district  if  such  building  is  the  usual  place 
of  worship  of  the  parties,  and  if  it  is  situated  not  more  than  two  miles 
beyond  the  limits  of  the  district  in  which  the  notice  of  marriage  has 
been  given  (Act  of  1856,  s.  14;  see  also  Marriage  Act,  1840,  3  &  4  Vict. 
c.  72,  s.  2.    See  Solemnisation  of  Marriage. 

A  certificate  in  the  same  form  is  also  issued  by  the  superintendent 
registrar  for  marriage  by  licence,  although,  as  has  been  said,  "  as  the 
licence  is  the  authority  for  the  marriage,  the  object  and  uses  of  the 
accompanying  certificate  are  not  obvious"  (Hammick,  Marriage  Law 
of  England,  p.  139). 

A  superintendent  registrar  who  knowingly  and  wilfully  issues  a 


SUPPLY  (COMMITTEE  OF)  713 

certificate  irregularly  is  guilty  of  felony  (Act  of  1836,  s.  40).     See  also 
Nonconformist  ;  Roman  Catholic. 

Superior. — As  to  the  superior  Courts  of  law,  see  Supreme 
Court  ;  Chancery  Division.  As  to  the  maxim  respondeat  superior,  see 
Respondeat  Superior. 

Superior  Courts. — See  Supreme  Court. 

Supersedea.S — A  writ  to  supersede  some  legal  process.  At 
common  law  the  allowance  of  a  writ  of  error  in  a  civil  action  entitled 
the  party  issuing  it  to  a  writ  of  supersedeas,  which  had  the  effect  of 
suspending  all  proceedings  towards  execution  until  the  determination  of 
the  Court  of  error  (Lush.  Practice,  3rd  ed.,  vol.  ii.  p.  664) ;  but  under  the 
modern  practice  an  appeal  does  not  operate  as  a  stay  of  execution  unless 
the  Court  otherwise  orders.  In  certain  matters,  however,  writs  of 
supersedeas  may  still  be  issued,  e.g.  to  supersede  a  writ  of  certiorari  or  to 
supersede  distress  (see  forms  in  Short  and  Mellor,  Croum  Office  Practice, 
2nd  ed.,  pp.  568,  569).  As  to  supersedeas  in  lunacy,  see  Lunacy,  Vol. 
VIIL  p.  467. 

Superstitious  Uses. — There  is  an  important  distinction 
between  the  old  and  the  more  modern  law  as  to  superstitious  uses ;  for 
before  the  Toleration  Act  and  the  other  Acts  for  removing  religious 
disabilities,  gifts  for  the  benefit  of  Roman  Catholics,  Jews,  and  dissent- 
ing sects  generally,  were  void  as  superstitious,  whether  the  gift  was 
a  "  charitable  "  one  or  not.  A  "  charitable  "  trust  in  the  legal  sense  may 
be  either  for — (1)  the  relief  of  poverty  ;  (2)  the  advancement  of  religion ; 
(3)  the  advancement  of  education ;  (4)  any  purpose  beneficial  to  the  com- 
munity at  large  (cp.  Commissioners  for  Special  Purposes  of  Income  Tax 
V.  Pemsel,  [1891]  A.  C.  531,  583;  In  re  Foveaux,  [1895]  2  Ch.  501,  504; 
R.  V.  Special  Commissioners  of  Income  Tax,  1908,  98  L.  T.  446).  Now, 
by  virtue  of  these  Acts,  it  is  only  gifts  that  are  superstitious  (e.ff.  prayer 
for  souls)  purely,  and  not  of  a  charitable  nature  within  the  above  defini- 
tion, that  are  void.  The  subject  will  be  found  treated  of  in  detail  under 
Charities  ;  see  also  Prayers  for  the  Dead. 

Su  ppletory  Oath. — In  certain  systems  of  law,  which  excluded 
the  evidence  of  the  parties  themselves  in  an  action,  when  presump- 
tive evidence  of  some  fact  was  given  (semi-plena  prohatio),  the  party 
on  whose  behalf  such  proof  had  been  adduced  was  permitted  to  give 
testimony  to  supplement  the  same  to  make  up  the  complete  proof  {plena 
prohatio)  necessary  to  a  decree  in  his  favour.  The  oath  taken  by  the 
party  was  thus  called  a  suppletory  oath,  or  an  oath  in  supplement  (see 
Taylor,  Evidence,  10th  ed.,  ss.  712,  713). 

Supplicavit. — A  writ  directed  to  justices  which  issued  out  of 
a  superior  Court  for  taking  surety  of  the  peace. 

Supply  (Committee  of). — This  is  a  committee  of  the 
whole  House  of  Commons  in  which  resolutions  are  passed  on  the  motion 
of  a  Minister  of  the  Crown  in  favour  of  making  grants  to  the  Crown  of 
money  needed  for  the  services  of  the  year.  These  are  called  Supply 
Services,  and  are  to  be  distinguished  from  Consolidated  Fund  Services, 


714  SUPPORT 

which  are  payments  charged  by  statute  on  the  Consolidated  Fund,  and 
not  requiring  to  be  revoted  every  year.  Resohitions  passed  in  Committee 
of  Supply  are  reported  to  the  House.  As  to  the  method  of  giving  effect 
to  them,  see  House  of  Commons. 

Support. — The  right  of  support  is  a  right  by  which  an  owner  of 
land  or  buildings  is  entitled  to  prevent  a  neighbour  removing  the  means 
of  support  supplied  by  his  land  or  buildings,  so  as  to  cause  the  former 
land  or  buildings  to  sink.  There  are  two  kinds  of  this  right,  namely, 
the  right  to  adjacent  and  the  right  to  subjacent  support ;  adjacent  support 
being  support  derived  from  land  or  buildings  contiguous  or  near  to  but 
not  underneath  the  land  or  buildings  of  the  dominant  owner,  and  sub- 
jacent support  being  support  for  surface  land  or  buildings  thereon  from 
the  subsoil,  where  the  properties  are  divided  horizontally,  the  surface 
land  belonging  to  one  person  and  the  subjacent  soil  or  mines  to  another. 
As  in  the  case  of  most  easements,  rights  to  support  are  also  divis- 
ible into  the  two  classes  of  natural  rights  and  right  acquired  by  long 
enjoyment  or  by  grant.  Rights  to  support  may  also  be  classed  as  rights 
in  respect  of  land  from  land,  buildings  from  land,  and  buildings  from 
buildings,  and  difierent  principles  prevail  regarding  each  of  these 
classes. 

The  natural  right  to  support  can  exist  only  in  the  case  of  land 
supported  by  land,  whether  adjacent  or  subjacent ;  it  does  not  exist  in 
respect  of  buildings.  As  long  as  land  is  suffered  by  the  owner  to  remain 
in  its  natural  condition,  that  is,  unbuilt  on  and  the  subsoil  unexcavated, 
it  is  invested  by  law  with  natural  rights  to  adjacent  and  subjacent 
support ;  but  this  right,  it  is  important  to  remember,  is  not  a  right  to 
any  particular  means  of  support — as,  for  instance,  if  it  has  been  supported 
by  coal,  that  the  coal  shall  not  be  taken  away — but  it  is  a  right  merely 
that  the  ordinary  use  and  enjoyment  of  the  dominant  land  shall  not  be 
destroyed  or  lessened  by  the  removal  of  the  means  of  support.  If,  there- 
fore, the  owner  of  coal  chooses  to  remove  it,  he  does  no  wrong  to  the 
dominant  owner  if  he  leaves  pillars,  or  substitutes  artificial  props,  suffi- 
cient to  keep  the  superincumbent  land  from  sinking  {Humphries  v. 
Brogden,  1850,  12  Q.  B.  739  ;  76  R.  R.  402). 

[In  West  Leigh  Colliery  Co.  v.  Tunnicliffe,  [1908]  A.  C.  30,  it  was 
pointed  out  by  Lord  Macnaghten  that  the  surface  owner's  right  to 
support  is  not  a  right  in  the  nature  of  an  easement,  or  a  right  to  have 
pillars  of  support  left  for  his  security,  but  merely  the  right  of  a  land- 
owner to  the  ordinary  enjoyment  of  his  land.  The  damage,  not  the 
withdrawal  of  support,  is  the  cause  of  action.  Accordingly  a  deprecia- 
tion, however  great,  if  caused  by  apprehension  of  future  mischief,  does 
not  furnish  a  cause  of  action,  nor  can  it  be  taken  into  consideration  and 
added  in  assessing  damages  where  actual  damage  has  occurred. 

The  right  of  support  to  land  by  subjacent  land  is  presumed  where 
there  is  no  evidence  of  the  original  severance  {Dixon  v.  White,  1883, 
8  App.  Cas.  842)  and  the  same  presumption  occurs  in  cases  of  adjacent 
lands  {Dalton  v.  Angus,  1881,  6  App.  Cas.  792),  These  rights  may  be 
surrendered  expressly  or  by  necessary  implication  from  the  instrument 
of  severance  {Butterknoiule  Colliery  Co.  v.  Bishop  Auckland,  [1906]  A.  C. 
305,  313,  and  cases  there  cited ;  and  see  Butterley  Co.  v.  New  Hucknall 
Co.,  [1908]  2  Ch.  475).] 

It  is  obvious  that  the  burden  on  the  servient  tenement  from  the 
right  to  support  must  vary  considerably  in  different  cases  from  the 


SUPPOKT  715 

nature  of  the  soil  of  the  dominant  and  servient  tenements,  both  as  to 
the  distance  from  the  dominant  tenement  to  which  the  right  extends, 
and  as  to  the  possibihty  of  removing  the  adjacent  or  subjacent  soil  with- 
out damaging  the  dominant  tenement.  If  the  surface  is  firm,  and  the 
soil  immediately  under  it  is  solid  rock  or  coal,  it  may  be  quite  possible 
to  excavate  close  up  to  the  dominant  tenement,  and  to  take  away  nearly 
all  that  is  underneath,  leaving  only  pillars  for  support,  or  to  substitute 
artificial  props ;  whereas  if  the  soil  is  sandy  or  impregnated  with  per- 
colating water,  any  disturbance  of  the  subjacent  or  adjacent  soil  may  be 
fraught  with  damage.  It  was  argued  that  in  such  a  case  the  right  must 
be  limited  to  a  reasonable  support  for  the  surface  ;  but  it  was  held  that 
the  rule  giving  the  right  must  be  laid  down  generally,  without  reference 
to  the  nature  of  the  strata  or  the  difficulty  of  propping  up  the  surface 
and  the  minerals,  and  that  the  only  reasonable  support  is  that  which 
will  altogether  protect  the  surface  from  subsidence,  and  keep  it  securely 
at  its  ancient  and  natural  level  {Humphries  v.  Brogden,  supra).  In  con- 
formity with  this  principle,  if  the  subjacent  mines  cannot  be  worked 
without  causing  subsidence  of  the  surface,  they  cannot  be  worked  at  all 
{Wakefield  v.  Duke  of  Bucdmch,  1866  and  1867,  L.  E.  4  Eq.  613 ;  [see 
this  case  in  the  House  of  Lords,  L.  K.  4  H.  L.  377,  discussed  in  Butter- 
knowle  Colliery  Co.  v.  Bishop  Auckland,  sw/jra]).  For  similar  reasons,  it 
is  impossible  to  limit  the  right  to  adjacent  support  in  point  of  distance, 
and  it  may  be  necessary  for  the  security  of  land  to  have  support  from 
distant  subsoil,  through  the  soil  of  intervening  proprietors  {Corporation 
of  Birmingham  v.  Allen,  1877,  6  Ch.  D.  284). 

This  being  the  general  principle  of  the  natural  right  to  support,  the 
effect  on  the  right  of  building  on  or  of  excavating  under  the  dominant 
tenement  has  to  be  considered.  The  natural  effect,  undoubtedly,  would 
be  to  impose  a  greater  burden  on  the  servient  tenement  if  the  servient 
owner  is  bound  to  limit  his  operations  so  as  not  to  cause  the  dominant 
land  to  sink,  though  such  sinking  would  not  have  occurred  but  for  the 
building  or  excavating ;  the  question,  therefore,  is  whether  the  right  to 
support  is  not  lost  by  implied  abandonment  on  such  material  alteration 
of  tiie  natural  state  of  things,  for,  according  to  a  well-known  principle, 
a  dominant  owner  cannot  by  his  own  act  of  building  or  excavating 
impose  a  greater  legal  burden  than  before  on  the  servient  tenement.  By 
another  general  principle,  natural  rights  cannot  be  altogether  destroyed 
or  lost,  but  can  only  be  suspended  ;  the  natural  right,  therefore,  remains, 
notwithstanding  the  building  or  excavating,  and  the  result  is  that  the 
servient  owner  is  not  responsible  for  damage  caused  by  his  operations, 
if  the  sinking  of  the  dominant  tenement  would  not  have  happened  had 
the  land  been  suffered  to  remain  in  its  natural  condition ;  but  if  his 
operations  would  have  brought  the  land  down  even  if  no  buildings  had 
been  erected  or  no  excavation  made,  he  will  still  be  liable,  for  he  has 
interfered  with  the  still-existing  natural  right,  and  as  consequential 
damage  he  can  be  made  to  pay  for  the  damage  to  the  buildings  also 
{Brown  v.  RoUtis,  1859, 4  H.  &  JST.  186  ;  Strmjan  v.  Knowles,  1861, 6  H.  &  N. 
454;  Siddms  \.  Short,  1877,  2  C.  P.  D.  572). 

It  may  be  mentioned  that  the  natural  right  to  support  for  the  surface 
land  from  subjacent  soil  does  not  extend  to  the  upward  pressure  from 
subjacent  water  percolating  through  the  soil  or  lying  in  underground 
cavities,  and  such  support  does  not  prevent  a  neighbouring  landowner 
draining  his  land,  whatever  damage  from  sinkage  may  be  caused  {North- 
eastern Bly.  Co.  V.  Elliott,  1860, 1  John.  &  H.  145;  Popplewell  Y.Hodgkinson, 


716  SUPPORT 

1869,  L.  R.  4  Ex.  248).  [But  Lindley,  M.R.,  doubted  whether  this  pro- 
position can  be  considered  as  finally  settled  {Jordeson  v.  Sutton,  etc.,  Gas 
Co.,  [1899]  2  Ch.  p.  239  ;  cp.  per  Rigby,  L.J.,  ibid.  p.  243  ;  and  see  Vol. 
IX.  p.  252).]  The  reason  for  this  probably  is,  though  not  so  stated, 
that  the  water  is  a  foreign  agent,  not  naturally  part  of  the  soil  from  all 
time,  which  may  even  have  been  of  recent  arrival  and  be  flowing  in 
unknown,  indefinite,  and  variable  channels,  liable  to  change  at  any 
minute.  This  principle,  however,  does  not  apply  to  support  for  surface 
water  from  underground  water  {Grand  Junction  Canal  Co.  v.  Shugar, 
1871,  L.  R.  6  Ch.  483 ;  see  Vol.  IV.,  Defined  and  Known  Channel). 

[It  has  been  held  by  the  Privy  Council  that  the  right  to  support  does 
extend  to  asphalt  or  pitch  which  formed  the  main  ingredient  of  the  land 
which  gave  lateral  support  {Trinidad  Co.  v,  Ambard,  [1899]  A.  C.  595). 
And  in  Jordeson  y.  Sutton,  etc.,  Gas  Co.,  [1899]  2  Ch.  217,  Lindley,  M.R., 
and  Rigby,  L.J.,  held  that,  assuming  that  the  plaintiff's  land  liad  been 
let  down  by  the  removal  of  wet  sand  or  running  silt  by  the  defendants, 
this  was  an  actionable  nuisance.  In  Salt  Union  v.  Brunner  Mond,  [1906] 
2  K.  B.  822,  Lord  Alverstone,  C.J.,  held  that  under  the  peculiar  circum- 
stances of  the  case  the  plaintiffs  could  not  recover  damages  for  injuries 
caused  by  the  subsidence  of  their  land  due  to  the  pumping  of  brine 
by  the  defendants.  But  stress  was  laid  on  the  fact  that  the  rights  of 
adjoining  proprietors  may  be  very  different  where  the  natural  state  of 
the  land  had  been  interfered  with,  as  was  the  case  here  {I.e.,  p.  833).] 

There  is  no  natural  right  to  support  for  buildings  from  land.  Any 
support  to  which  they  are  entitled  can  only  be  acquired  as  an  easement 
by  grant  or  prescription.  It  has  been  suggested  that  as  the  raising  of 
buildings  is  one  of  the  natural  uses  to  which  land  may  be  put,  the  natural 
right  to  support  for  land  should  be  held  to  extend  to  them ;  but  this 
view  has  not  been  maintained,  and  to  uphold  this  doctrine  would  be 
to  violate  the  general  principle,  that  one  owner  of  land  cannot  impose 
or  increase  a  burden  on  another's  soil  by  his  own  act  {per  Cotton,  L.J., 
in  Angus  v.  Dalton,  1878,  4  Q.  B.  D.  p.  184). 

That  an  easement  of  support  for  buildings  from  both  subjacent  and 
adjacent  land  can  be  acquired  from  twenty  years'  enjoyment  is  a  recog- 
nised principle  of  law,  but  on  what  theory  the  acquisition  of  the  right 
is  based  is  almost  an  unanswerable  question.  This  was  the  main  ques- 
tion in  the  celebrated  case  of  Angus  v.  Dalton  (in  Q.  B.  1877,  3  Q.  B.  D. 
85;  on  appeal,  1878,  4  Q.  B.  D.  162;  in  H.  L.,  1881,  6  App.  Cas.  740). 
The  theory  of  prescription  is  that  the  right  claimed  was  granted  in 
ancient  times  by  the  then  servient  to  the  then  dominant  owner,  but 
that  the  grant  has  been  lost,  and  that  it  must  be  presumed  from  long 
enjoyment  to  have  been  made,  as  otherwise  the  servient  owner  would 
not  have  submitted  to  the  user  or  enjoyment ;  but  such  grant  cannot 
be  presumed  against  the  servient  owner  unless  he  has  known  of  the 
enjoyment  of  the  right  claimed,  and  has  been  able  to  resist  it ;  in  fact, 
his  non-resistance  for  a  long  time  is  the  basis  of  the  presumption  against 
him.  But  if  a  neighbour  builds  on  adjoining  land,  how  is  it  possible  for 
him  to  know  that  the  building  receives,  or  will  in  time  receive,  support 
from  his  soil  ?  he  can  only  make  a  guess ;  and  if  he  can  fairly  assume 
that  support  is  received,  or  will  thereafter  be  received,  how  is  it  possible 
for  him  to  resist  the  enjoyment  ?  There  are  no  reasonable  means  of 
doing  so,  and  the  ordinary  theory  of  prescription  therefore  falls  to  the 
ground.  The  consequence,  however,  of  holding  that  the  right  of  support 
for  a  building  cannot  be  acquired  by  prescription  would  be  so  serious. 


SUPPORT  717 

that  every  suggestion  and  effort  were  made,  in  the  case  of  Angus  v. 
Dalton,  supra,  to  uphold  the  right  on  some  principle  that  tlie  law  could 
recognise ;  but  the  views  of  the  judges  and  in  the  House  of  Lords  were 
so  numerous  and  diverse  that  the  only  result  was  that  it  must  be 
assumed  as  a  doctrine  of  law,  that  after  a  building  has  stood  for  twenty 
years  a  right  to  support  is  acquired ;  but  whether  this  is  by  prescription, 
presumption  of  lost  grant,  or  by  a  mere  rule  of  law,  apart  from  all 
theory,  remains,  in  fact,  an  open  question.  Acquisition  of  rights  to 
support  for  buildings  by  long  enjoyment  was  recognised  in  various  cases 
before  Angus  v.  Dalton,  and  the  following  cases  may  be  consulted : — 
Mide  V.  Thornborough,  1846,  2  Car.  &  Kir.  250 ;  Humphries  v.  Brogden, 
1850,  12  Q.  B.  739 ;  76  Pt.  R.  402 ;  Partridge  v.  Scott,  1838, 3  Mee.  &  W. 
220 ;  49  R.  R.  578 ;  Wyatt  \.  Harrison,  1832, 3  Barn.  &  Adol.  871 ;  37  R.  R. 
566.  [In  a  recent  case  in  the  Court  of  Appeal  it  was  held  that,  in  order 
to  acquire  the  easement  of  support,  the  owner  of  the  servient  tenement 
must  have  had  a  reasonable  opportunity  of  becoming  aware  of  the 
enjoyment  of  support  by  the  owners  of  the  dominant  tenement  (  Union 
Lighterage  Co.  v.  London  Dock  Co.,  [1902]  2  Ch.  557;  see  also  Gatley  v. 
Martin,  1900,  2  Ir.  R.  269).] 

The  possibility  of  acquiring  a  right  to  support  for  a  building  from 
adjacent  land  being  admitted,  the  further  question  arises  whether  a 
similar  right  can  be  acquired  for  one  building  from  another  contiguous 
to  it,  or  separated  from  it  by  another  intervening  building. 

If  two  houses  or  a  row  of  houses  be  built  at  one  time  and  be  after- 
wards sold  separately,  there  would  probably  be  mutual  rights  to  support 
by  implied  grant  ([cp.  Richards  v.  Rose,  1853,  9  Ex.  218]);  but  if  such 
houses  be  built  by  different  owners  at  the  extreme  edge  of  their  ground 
with  separate  walls,  but  in  process  of  time  they  get  out  of  the  perpen- 
dicular and  one  house  derives  support  from  another,  it  is  a  difficult 
question  whether  the  former  is  entitled  to  support  as  an  easement.  In 
Solomon  v.  Vintners  Co.,  1859,  4  H.  &  N.  585,  the  decision  was  that  such 
right  could  not  be  acquired  by  prescription,  though  the  judges  based 
their  judgments  on  different  reasons  (see  also  Brown  v.  Windsor,  1830, 
1  Cromp.  &  J.  20);  but  in  Lemaitre  v.  Davis,  1881,  19  Ch.  D.  281,  Hall, 
V.-C,  held  that  the  principles  enunciated  in  Angus  v.  Dalton,  applicable 
to  support  of  houses  from  adjacent  land,  applied  equally  to  support  of 
buildings  from  buildings,  and  that  such  right  could  be  acquired  after 
twenty  years'  enjoyment. 

A  further  doubtful  question  is  whether  the  right  to  support  can  be 
acquired  under  the  Prescription  Act,  1832,  2  &  3  Will.  iv.  c.  71,  s.  2. 
That  Act  provides  for  acquisition  by  twenty  years'  user  of  rights  of  way 
"  or  other  easement,"  or  to  any  watercourse  or  the  use  of  any  water. 
Support  is  not  specifically  mentioned,  and  the  question  is  whether  it  is 
covered  by  the  words  "or  other  easement"  coming  between  the  pro- 
visions for  ways  and  water.  It  has  been  held  that  the  words  do  not 
include  rights  to  air  and  wind  (Webb  v.  Bird,  1861,  10  C.  B.  K  S.  268; 
on  appeal,  1863,  13  C.  B.  N.  S.  841),  but  Lord  Selborne  (in  Angus  v. 
Dalton,  1881,  6  App.  Cas.  740)  seemed  to  think  that  the  words  would 
include  the  right  to  support,  unless  the  section  is  confined  (as  Sir 
William  Erie  appears  to  have  thought)  to  rights  similar  to  rights  of 
way  and  rights  of  water,  between  which  the  words  are  placed  in  the  Act 
[In  Simpson  v.  Godmanchester  Corporation,  [1897]  A.  C.  696,  709,  it  was 
held  that  sec.  2  applied  to  the  right  to  divert  flood  water,  and  was  not 
confined  to  rights  of  way  and  watercourses] ;  and  Hall,  V.-C,  in  Lemaitre 


718  SUPPORT 

V.  Davis,  1881,  19  Ch.  D.  281,  distinctly  held  that  a  right  to  support  for 
a  building  from  either  land  or  an  adjoining  building  is  claimable  under 
the  Act, 

There  is  one  case  in  which  no  right  to  subjacent  support  is  acquired 
where  land  is  separated  from  the  subjacent  soil ;  that  is,  in  the  case  of 
railways  and  canals  over  mines,  for  which  special  provision  for  the  pur- 
chase or  otherwise  of  the  subjacent  mines  is  made  by  the  Railways 
Clauses  Consolidation  Act,  1845,  ss.  77,  78,  and  79,  and  similar  Acts 
(see  Mines  and  Minerals,  Vol.  IX.  p.  251). 

As  to  the  right  to  sue  for  damage  done  by  removal  of  support  it 
should  be  noticed  that  no  action  will  in  general  lie  against  a  person  for 
removing  support  unless  a  right  to  support  exists  either  by  natural  right 
or  by  acquisition,  as  by  prescription  or  grant,  with  one  exception.  If 
the  person  removing  the  support  is  a  wrong-doer — that  is,  if  he  has  no 
right  to  do  the  act  of  removal,  and  is  a  trespasser  as  to  the  land  giving 
support — he  will  be  liable  for  damages  to  the  owner  of  the  supported 
land  or  building,  though  no  right  to  support  exists  against  the  owner  of 
the  means  of  support  {Jeffries  v.  Williams,  1850,  5  Ex.  Rep.  792 ;  [Bibhy 
V.  Carter,  1859,  28  L.  J.  Ex.  182]). 

[Where  the  right  to  support  exists  it  is  predominant  over  the  right 
of  the  servient  owner  to  use  his  property ;  if  he  cannot  take  his  minerals 
or  rebuild  his  house  without  damage  to  the  dominant  tenement  he  must 
not  do  so  at  all  (Humphries  v.  Brogden,  1850,  12  Q.  B.  745;  76  R.  R. 
402 ;  Hext  v.  Gill,  1872,  L.  R.  7  Ch.  699 ;  Butterley  Go.  v.  New  Huchiall 
Go.,  [1908]  2  Ch.  475).  The  duty  of  the  servient  owner  extends  to 
negligence  of  an  independent  contractor  {Riiglies  v.  Percival,  1883,  8  A.  C. 
446),  but  does  not  amount  to  a  duty  to  insure  {I.e.).  There  is,  however, 
no  implied  obligation  on  the  owner  of  the  servient  tenement  to  take 
active  steps  to  keep  his  house  in  repair.  The  owner  of  the  dominant 
tenement  may  enter  upon  the  servient  tenement  to  do  the  necessary 
repairs  {Golebeck  v.  Girdlers  Go.,  1876, 1  Q.  B.  D.  234 ;  cp.  the  observations 
of  Parker,  J.,  in  Jones  v.  Pritchard,  [1908]  1  Ch.  630 ;  and  see  cases  cited, 
sub  tit.  Easements,  Vol.  V.  p.  34).] 

Another  point  to  be  noticed  is  the  time  at  which  the  cause  of  action 
arises — whether  it  is  when  the  support  was  removed  or  when  the  con- 
sequential damage  arises.  This  question  was  raised  in  the  celebrated 
case  of  Bonomi  v.  Backhouse,  1858,  El.  B.  &  E.  622 ;  in  H.  L.,  1861,  9  H.  L. 
503 ;  11  E.  R.  825.  It  is  clear  that  in  many  cases  the  damage  may  not 
arise  till  a  considerable  time  after  the  support  is  removed ;  so  that  if 
the  period  limited  by  the  Statute  of  Limitations  be  exceeded,  it  becomes 
a  question  of  the  greatest  moment  whether  the  time  limited  is  to  be 
computed  from  the  date  of  the  removal  of  the  support,  or  if  it  is  to  be 
calculated  from  the  time  the  injury  was  sustained.  It  was  held  in  that 
case  that  the  time  for  suing  runs  from  the  date  when  the  injury  was 
sustained,  as  that  is  the  cause  of  action,  no  wrong  having  been  com- 
mitted when  the  defendant  excavated  in  his  own  soil.  In  like  manner 
it  has  been  held  that  where  a  statute  limited  the  time  for  suing  for  any- 
thing "  done  or  acted  "  pursuant  to  its  provisions,  to  three  months  "  after 
the  fact  committed,"  the  time  to  sue  was  computed,  not  from  the  time 
when  the  excavation  was  made,  but  from  the  appearance  of  the  damage 
{Eoherts  v.  Bead,  1812, 16  East,  215 ;  14  R.  R.  335).  A  further  question 
as  to  right  of  action  for  damage  for  removal  of  support  is  whether  suc- 
cessive injuries  arising  from  the  same  original  cause  give  rise  to  successive 
rights  of  action,  or  whether  compensation  must  be  computed  once  for 


SUPKEME  COUET  719 

all  on  the  occurrence  of  the  first  injury  showing  itself,  and  when  the 
first  action  is  brought.  In  the  case  of  Lamh  v.  Walker,  1878,  3  Q.  B.  D. 
389,  it  was  held  (Cockburn,  C.J.,  diss.)  that  damages  must  be  assessed 
once  for  all;  but  in  the  subsequent  case  of  Mitchell  v.  Barley  Main 
Colliery  Co.,  1886,  11  App.  Cas.  127,  it  was  held  by  the  House  of  Lords 
(Lord  Blackburn  diss.)  that  on  each  occurrence  of  fresh  damage  a  fresh 
cause  of  action  arises;  [and  in  West  Leigh  Colliery  Co.  v.  Tunnicliffe, 
[1908]  A.  C.  27,  it  was  held  that  depreciation  in  the  market  value  of 
property  brought  about  by  apprehension  of  future  damage  cannot  be 
taken  into  account  in  assessing  damages.  See  further,  as  to  the  measure 
of  damages.  Lodge  Holes  Colliery  Co.  v.  Wedneshury  Corporation,  [1908] 
C.  A.  323.] 

As  to  the  remedy  by  injunction,  see  Mines  and  Minerals,  Vol.  IX., 
at  p.  252. 

[See  Goddard  on  basements  ;  Gale  on  Easements ;  Banks  on  Support.'] 

Supremacy. — See  State. 

Supremacy,  Act  of. — See  Eoyal  Supremacy;  and  next 
article. 

Supremacy,  Oath  of. — The  oath  which,  by  the  Act  of 
Supremacy,  1  Eliz.  c.  1,  was  required  to  be  taken  by  archbishops, 
bishops,  judges,  and  all  ministers  and  officers,  spiritual  and  temporal. 
By  the  form  of  oath,  which  is  set  out  in  sec.  9  of  the  Act,  the  deponent 
acknowledged  the  supremacy  of  the  King  "as  well  in  all  spiritual  or 
ecclesiastical  things  or  causes  as  temporal,"  and  declared  that  no  foreign 
prince,  person,  prelate,  State,  or  potentate  had,  or  ought  to  have,  any 
jurisdiction  or  authority  within  the  realm.  At  the  Revolution  the 
form  of  the  oath  was  much  shortened  (see  Bill  of  Rights,  s.  3),  and 
during  the  reign  of  Queen  Victoria  it  was  abolished  altogether,  the 
oath  of  allegiance  in  the  form  given  in  the  Promissory  Oaths  Act,  1868, 
31  &  32  Vict.  c.  72,  s.  2,  being  substituted.  See  Oaths;  Oath  of 
Allegiance. 

Supreme  Court. — At  the  date  of  the  passing  of  the  Judica- 
ture Act,  1873,  hereinafter  referred  to,  justice  was  principally  adminis- 
tered in  England  by  certain  superior  Courts  of  Record,  namely,  the 
Superior  Courts  of  Common  Law  and  Equity,  the  Probate  and  Divorce 
Court,  the  Admiralty  Court,  and  the  London  Court  of  Bankruptcy. 

The  superior  Courts  of  common  law  above  mentioned,  namely,  the 
King's  Bench,  the  Common  Pleas,  and  the  Exchequer,  together  with 
the  Court  of  Chancery,  appear  to  have  come  into  existence  through 
the  gradual  disintegration  of  the  great  council  of  the  kingdom,  or  aula 
regia.  First  the  Court  of  Common  Pleas  was  established  at  Westminster 
by  the  Great  Charter,  and  a  considerable  branch  of  the  jurisdiction  of 
the  great  council  was  thus  taken  away  (see  infra).  Subsequently,  in 
the  reign  of  Edward  i.,  the  remainder  of  the  judicial  authority  exercised 
by  the  chief  justiciar,  who  presided  in  the  aula  regis,  seems  to  have  been 
divided  by  that  King  between  the  chancellor  and  the  judges  of  the  King's 
Bench  and  Exchequer. 

The  King's  Bench. — The  Court  of  King's  Bench  (or  Queen's  Bench) 
was  so  called  because  in  theory  the  Sovereign  was  there  present,  the 
style  of  the  Court  being  coram  ipso  rege,  or  in  the  case  of  a  Queen 


720  SUPEEME  COUET 

Eegnant,  coram  ipsd  regind.  This  Court  was  not  fixed  at  Westminster 
like  the  Common  Pleas,  although  it  usually  sat  there,  but  followed 
the  person  of  the  Sovereign  wherever  he  might  be.  It  consisted  of 
a  chief  justice  (capitalis  justiciarius  Anglice)  and  five  puisne  justices. 
The  judges  of  this  Court  were  of  supreme  authority,  capitales  generales 
perpetui  et  majorcs  a  latere  regis  residentes.  They  were  the  sovereign 
judges  of  oyer  and  terminer,  and  of  gaol  delivery ;  they  were  con- 
servators of  the  peace  and  the  sovereign  coroners  of  the  land  (4  Inst., 
ch.  vii.). 

The  jurisdiction  of  this  Court  was  very  high  and  transcendent.  It 
took  cognisance  both  of  criminal  and  civil  matters,  of  the  former  on  the 
Crown  side  of  the  Court,  of  the  latter  on  the  Plea  side.  It  was  the 
principal  Court  of  criminal  jurisdiction,  and  by  its  coming  into  a  county 
all  former  commissions  of  oyer  and  terminer  ceased.  It  had  cognisance 
on  the  Crown  side  of  all  pleas  of  the  Crown,  such  as  treasons,  felonies, 
etc.,  and  indictments  might  be  removed  into  it  from  inferior  Courts  by 
certiorari.  After  the  abolition  of  the  Star  Chamber  it  also  came  to  be 
regarded  as  the  ciistos  morum  of  the  nation.  It  kept  all  inferior  juris- 
dictions within  the  bounds  of  their  authority,  and  either  removed  the 
proceedings  in  them  to  be  determined  before  itself,  or  by  prohibition, 
arrested  their  progress.  It  superintended  all  civil  corporations  within 
the  kingdom,  the  King  being  the  visitor  of  these  by  law.  It  com- 
manded, by  issue  of  the  high  prerogative  writ  of  mandamus,  magistrates 
and  others  to  do  their  duty.  It  protected  the  liberty  of  the  subject 
by  speedy  and  summary  interposition,  for  if  any  person  were  com- 
mitted to  prison  or  illegally  confined,  this  Court  would  grant  a  habeas 
corpus,  and  it  might  bail  any  person  for  any  offence  whatever.  The 
jurisdiction  of  the  King's  Bench  on  the  Crown  side  is  still  preserved 
intact,  and  allocated  to  the  King's  Bench  Division;  that  on  the  Plea 
side  is  merged  in  the  High  Court.  This  Court  was  also  a  Court  of 
Error  from  the  Palatinate  Courts,  and  of  appeal  from  these  Courts  for 
the  purpose  of  certain  statutes  (cp.  Coke,  4  Inst.,  ch.  vii. ;  Blackstone, 
Com.,  vol.  iii. ;  Broom  and  Hadley,  Com.,  vol.  iii. ;  Shortt,  Informations, 
Mandamus,  etc. ;  Short  and  Mellor,  Practice  of  the  Crown  Office ;  Viner, 
Abridg.,  p.  553). 

The  Common  Pleas. — The  Court  of  Common  Pleas,  or  Common 
Bench,  was  the  first  of  the  superior  Courts  detached  from  the  great 
council.  By  cap.  11  of  Magna  Carta  it  was  provided  quod  communia 
placita  non  sequuntur  curiaTn  nostram  sed  teneantur  loco  certo,  and  the 
Court  thus  became  fixed  at  Westminster  Hall.  "This  Court,"  says 
Sir  Edward  Coke,  "is  the  lock  and  the  key  of  the  common  law  in 
Common  Pleas,  for  herein  are  real  actions,  where  upon  fines  and 
recoveries  (the  common  assurances  of  the  realm)  do  pass,  and  all  other 
real  actions  by  original  writs  are  to  be  determined,  and  also  of  all 
common  pleas  mixed  or  personal "  (4  Inst.,  ch.  x.).  All  pleas  or  suits 
were  formerly  divided  into  pleas  of  the  Crown,  comprehending  all 
crimes  and  misdemeanors  over  which  the  King's  Bench  had  exclusive 
jurisdiction,  and  common  or  civil  pleas,  which  included  all  civil  actions 
between  subject  and  subject,  and  over  most  of  these  the  jurisdiction  of 
the  King's  Bench  was  concurrent  with  that  of  the  Common  Pleas. 

This  Court  might  also  grant  prohibitions  to  keep  inferior  Courts 
within  their  jurisdiction.  It  was  presided  over  by  a  chief  (capitalis 
justiciarius  de  communi  banco)  and  four  puisne  justices,  all  created  by 
letters  patent,  and  each  of  whom  was  required  to  be  a  serjeant-at-law 


SUPEEME  COUET  721 

of  the  Degree  of  the  Coif.  It  was  the  Court  of  Appeal  from  the 
decisions  of  revising  barristers  under  6  &  7  Viet.  c.  18,  and  exercised 
some  peculiar  functions  under  the  Act  for  the  Abolition  of  Fines  and 
Eecoveries,  and  under  the  Eailway  and  Canal  Traffic  Act,  1854. 

The  Exchequer. — The  Exchequer,  perhaps  so  called  from  the  blue- 
and-white  chequered  woollen  cloth  (scaccarium),  with  which  the  common 
table  of  the  Court  was  always  covered,  was  in  its  origin  a  Court  of 
Eevenue.  It  had  supreme  judicial  authority  and  exclusive  legal  cog- 
nisance in  all  matters  of  debt  or  duty  demandable  from  the  subject  by 
the  Crown.  To  supervise,  manage,  and  improve  the  revenue  was  its 
principal  business,  but  it  was  also  greatly  concerned  in  the  conservation 
of  the  Crown's  prerogatives.  It  originally  took  cognisance  of  civil 
causes  between  subjects  in  all  cases  wherein  the  fiscal  rights  or  the 
revenue  of  the  King  was  in  any  manner  affected,  and  this  was  the 
foundation  of  the  jurisdiction  exercised  by  this  Court  as  a  Court  of 
Common  Law.  It  was  not  at  first  recognised  as  a  public  Common  Law 
Court,  but  was  considered  as  a  mere  private  forum  for  its  own  officers 
and  accountants,  and  therefore  original  writs  in  matters  of  civil  justice 
were  not  issued  out  of  Chancery  returnable  before  the  treasurer  and 
barons.  But  in  time,  by  a  fiction,  any  plaintiff  was  permitted  to  suggest 
(by  the  writ  of  Quominus)  that  he  was  debtor  to  the  King,  and  that  the 
defendant  had  done  him  an  injury  by  which  he  was  less  able  to  pay  hia 
debt  to  the  King,  and  this  fiction  was  recognised  as  well  on  the  Equity 
side  of  this  Court  as  on  its  Common  Law  side,  the  Exchequer  of  Pleas. 
In  respect  of  revenue  matters  the  jurisdiction  of  this  Court,  which  wa& 
exclusive,  proceeded  on  the  authority  of  original  writs  issued  out  of  the 
High  Court  of  Chancery,  and  then  estreated  into  the  Exchequer,  out  of 
which  Court  process  and  execution  issued. 

On  the  Equity  side  of  the  Court  of  Exchequer  the  Chancellor  of  the 
Exchequer  was  the  nominal  head.  The  equitable  jurisdiction,  which 
was  concurrent  with  that  of  the  Court  of  Chancery  and  had  become 
very  extensive,  was  transferred  to  the  Court  of  Chancery  by  5  Vict. 
c.  5,  8.  1,  and  since  that  time  until  its  merger  in  the  High  Court  the 
Court  of  Exchequer  was  a  Court  of  law  and  revenue  only.  As  a  Court 
of  Common  Law  it  heard  and  determined  personal  suits  and  actions 
between  all  subjects  whatever,  the  Court  being  presided  over  by  a  chief 
and  five  puisne  barons.  Two  of  the  senior  barristers  without  the  bar 
practising  in  this  Court  were  called  respectively  the  Postman  and  the 
Tubman,  and  had  precedence  of  Attorney-  and  Solicitor-General  in 
making  motions  (cp.  Inst.,  pt.  iv.  ch.  11;  Plowd.  Com.,  200;  Price  on 
Exchequer  ;  Blackstone,  Com.,  vol.  iii. ;  Fowler,  Exchequer  Practice). 

The  High  Court  of  Chancery. — On  the  breaking  up  of  the  aula  regia,  in 
the  reign  of  Edward  i.,  the  Chancellor  retained  the  Great  Seal,  and  with 
it  the  power  of  issuing  original  writs  returnable  in  Chancery,  thus  con- 
stituting that  Court  a  check  upon  the  King's  Bench,  Common  Pleas, 
Exchequer,  etc.  The  Court  of  Chancery  was  hence  sometimes  called 
"  Officina  Justitise,"  and  the  Chancellor  being,  it  seems,  invested  with 
the  greater  part  of  that  superior  power  which  during  the  continuance  of 
the  aula  regia  had  been  in  the  hands  of  the  Chief  Justiciar,  continued 
to  be  called  the  foot  and  basis  of  the  civil  jurisdiction  of  all  the  Courts- 
{op.  Pref.  to  10  Eep. ;  3  Blackstone,  Com.,  49;  Gilbert  on  Exchequer,  6). 
This  Court  consisted  of  two  divisions — the  one,  ordinary,  being  a  Court 
of  Common  Law ;  the  other,  extraordinary,  being  a  Court  of  Equity. 
The  common-law  jurisdiction  consisted  principally  in  its  holding  pleas 
VOL.  XIII.  46 


722  SUPREME  COURT 

upon  a  scire  facias  to  repeal  and  cancel  letters  patent,  on  petitions  of 
right,  traverses  of  office,  and  in  cases  in  which  the  King  had  been 
advised  to  do  any  act  in  prejudice  of  a  subject's  right,  etc.  This  juris- 
diction also  extended  over  all  personal  actions  where  any  officer  of  the 
Court  was  a  party,  and  over  petitions  of  lands  in  coparcenary,  and 
claims  for  dower  where  a  ward  of  Court  was  concerned  ;  but  when  the 
parties  proceeded  to  issue,  the  Clerk  of  the  Petty  Bag  delivered  the 
record  into  the  King's  Bench,  there  to  be  tried  by  a  jury  or  at  bar. 
This  Court  had  on  its  Common  Law  side  two  branches — the  Court  of 
the  Hanaper,  in  which  writs  and  returns  relating  to  the  subject  were 
kept,  and  the  Court  of  the  Petty  Bag,  in  which  writs  and  returns 
relating  to  matters  wherein  the  Crown  was  concerned  were  preserved — 
but  this  common-law  jurisdiction,  which  seems  never  to  have  been 
much  resorted  to,  had  become  obsolete  some  considerable  time  before 
the  merger  of  the  Court  in  the  High  Court  of  Justice.  The  equitable 
jurisdiction  of  this  Court  was  based  chiefly  upon  its  recognition  in  the 
fourteenth  century  of  the  doctrine  of  trusts  or  uses.  The  Courts  of  law 
refused  to  recognise  any  obligation  binding  the  legal  owner  of  property 
to  give  effect  to  a  trust  or  use  imposed  upon  it.  But  the  Court  of 
Chancery  assumed  jurisdiction,  and  enforced  the  trust  or  use  by  means 
of  a  writ  of  subpcena  directed  to  the  defendant,  and  requiring  him  to 
appear  and  answer  a  bill  of  complaint  against  him  in  that  Court ;  and 
out  of  this  a  vsist  administrative  business  gradually  grew  up  by  which 
family  estates  and  property  were  administered  by  that  Court.  In 
exercising  the  enforcement  of  equitable  rights  this  Court  disregarded 
the  ordinary  rules  of  procedure  in  Courts  of  law,  and  by  examination 
on  oath  of  the  parties  endeavoured  to  discover  the  truth.  In  its  judg- 
ments, whilst  adhering  to  those  rules  of  law  which  were  consonant  with 
principles  of  equity,  it  boldly  overruled  rules  and  maxims  which  had 
been  laid  down  by  the  judges,  notwithstanding  that  they  worked  injus- 
tice ;  and  in  the  reign  of  James  I.  had  established  the  right  to  restrain 
by  injunction  a  complainant  at  law  from  pursuing  his  remedy  at  law, 
when  his  doing  so  would  have  been  against  conscience.  Gradually  this 
equitable  jurisprudence  became  the  subject  of  rules  and  precedents,  and 
ceased  to  be  dependent,  as  it  was  in  early  times,  upon  the  personal 
notions  of  justice  of  him  who  was  Chancellor  (Selden's  Table  Talk, 
"Equity").  "  There  are,"  said  Lord  Redesdale  (Bond  v.  Hopkins,  1802, 
1  Sch.  &  Lef,,  at  p.  419),  "  certain  principles  on  which  Courts  of  Equity 
act  which  are  well  settled.  The  cases  which  occur  are  various,  but 
they  are  decided  on  fixed  principles.  Courts  of  Equity  have  in  this 
respect  no  more  discretionary  power  than  Courts  of  law."  It  is,  how- 
ever, impossible  to  give  any  general  description  of  this  jurisprudence 
which  shall  be  brief,  accurate  and  useful,  but  the  following  heads  may 
be  said  to  include  every  branch  of  it : — Trusts ;  Specific  Performance ; 
Account ;  Fraud ;  Accident  and  Mistake ;  and  infants  (cp.  Equity  ; 
Infants). 

This  Court  was  presided  over  by  the  Lord  Chancellor  (see  Chan- 
cellor), assisted  by  the  Master  of  the  Rolls,  and  in  recent  times  by 
three  Vice-Chancellors.  The  appeal  from  these  judges  of  first  instance, 
the  Master  of  the  Rolls  and  the  Vice-Chancellors,  lay  in  and  subse- 
quently to  1851,  to  the  Court  of  Appeal  in  Chancery,  consisting  of  the 
Lord  Chancellor  and  two  judges,  styled  Lords  Justices  of  the  Court  of 
Appeal  in  Chancery  (see  14  &  15  Vict.  c.  83,  s.  11 ;  30  &  31  Vict.  c.  64, 
s.  1 ;  cp.  Chancellor  ;  Chancery  Division  ;  Story's  Com. ;  Spence's 
Uquitable  Jurisdiction;  Fonblanque's  Equity ;  Jus  Sigilli  (1683). 


SUPREME  COURT  723 

Court  of  Probate. — See  Peobate. 

Court  of  Divorce,  etc. — The  Court  for  Divorce  and  Matrimonial  Causes 
was  constituted  by  the  20  &  21  Vict.  c.  85,  and  by  that  Act  made  a 
Court  of  Record.  [Its  jurisdiction  has  been  further  extended  as  to  Main- 
tenance and  Alimony  by  an  Act  of  1907,  7  Edw.  vii.  c.  12.]  It  held  its 
sittings  at  "Westminster.  The  Lord  Chancellor,  the  chief  and  the  senior 
puisne  judge  of  the  three  Common  Law  Courts  respectively  together 
with  the  judge  of  the  Probate  Court,  styled  "Judge  Ordinary,"  were  its 
judges.  In  this  Court  was  vested  all  jurisdiction  then  vested  in  or 
exercisable  by  any  ecclesiastical  Court  or  person  in  England,  in  respect 
of  divorces  d,  metisd  ct  thoro,  suits  of  nullity  of  marriage,  suits  for  restitu- 
tion of  conjugal  rights,  or  jactitation  of  marriage,  and  all  causes,  suits, 
and  matters  matrimonial,  except  in  respect  of  marriage  licences, 
together  with  the  jurisdiction  conferred  by  the  Act.  The  decree  for  a 
divorce  d  mensd  et  thoro  was  abolished,  and  a  decree  for  a  judicial  separation, 
having  the  same  force  and  effect,  substituted,  and  power  was  given  to 
the  Court  in  certain  cases  to  decree  the  dissolution  of  the  marriage, 
in  which  case  it  became  lawful  for  the  parties  respectively  to  marry 
again.  [This  Court  hears  appeals  from  orders  made  by  justices  under 
the  Summary  Jurisdiction  (Married  Women)  Act,  1895.] 

High  Court  of  Admiralty. — See  ADiMiRALTY  Division. 

Court  of  Bankruptcy. — See  Bankruptcy. 

The  Judicature  Commission. — In  1867  a  Royal  Commission  was 
appointed  to  inquire  into  the  operation  and  effect  of  the  constitution  of 
the  High  Court  of  Chancery  in  England,  the  Superior  Courts  of  Common 
Law  at  "Westminster,  the  Central  Criminal  Court,  the  High  Court  of 
Admiralty  in  England,  the  Admiralty  Court  of  the  Cinque  Ports,  the 
Courts  of  Probate  and  Divorce  for  England,  the  Courts  of  Common  Pleas 
of  the  Counties  Palatine  of  Lancaster  and  Durham,  and  the  Courts  of 
Error  and  of  Appeal  from  all  the  said  several  Courts,  and  into  the 
operation  and  effect  of  the  separation  and  division  of  jurisdictions  then 
existing  between  the  said  several  Courts,  with  a  view  to  ascertaining 
whether  any  and  what  changes  and  improvements  could  be  made,  so  as 
to  provide  for  the  more  speedy,  economical,  and  satisfactory  despatch  of 
the  judicial  business  transacted  in  such  Courts. 

The  Commissioners  in  their  first  report,  March  1869,  referred  in 
their  introductory  remarks  to  the  ancient  division  of  the  Courts  into 
the  Courts  of  Common  Law  and  the  Court  of  Chancery,  a  division 
founded  on  the  distinction  in  our  law  between  common  law  and  equity. 
This  distinction,  they  point  out,  had  led  to  the  establishment  of  two 
systems  of  judicature,  organised  in  different  ways,  and  administering 
justices  on  diff'erent  and  sometimes  opposite  principles,  using  different 
methods  of  procedure,  and  applying  different  remedies.  The  evils  of 
this  double  system  of  judicature,  and  the  confusion  and  conflict  to  which 
it  had  led,  had,  the  report  states,  been  long  known  and  acknowledged, 
and  various  commissions  had  been  appointed  to  inquire  into  the  matter, 
and  several  Acts  of  Parliament  passed  for  the  purpose  of  giving  effect 
to  their  recommendations,  but  much  of  the  old  mischief  still  remained. 
They  also  referred  to  the  conflict  of  jurisdiction  between  the  Courts  of 
Common  Law  and  the  High  Court  of  Admiralty,  to  the  different  and 
conflicting  principles  by  which  these  Courts  were  governed,  and  to  the 
inability  of  the  last-mentioned  Court  to  give  a  complete  remedy.  The 
Commissioners  were  of  opinion  that  the  defects  referred  to  could  not  be 
completely  remedied  by  any  mere  transfer  or  blending  of  jurisdiction 


724  SUPEEME  COURT 

between  the  Courts  as  then  constituted,  and  that  the  first  step  towards 
meeting  and  surmounting  the  evils  complained  of  should  be  the  con- 
solidation of  all  the  superior  Courts  of  Law  and  Equity,  together  with 
the  Courts  of  Probate,  Divorce  and  Admiralty,  into  one  Court,  to  be 
called  "  Her  Majesty's  Supreme  Court,"  in  which  Court  should  be  vested 
all  the  jurisdiction  exercisable  by  each  and  all  the  Courts  so  to  be 
consolidated. 

The  Judicature  Acts. — Accordingly,  by  the  third  section  of  the  Judi- 
cature Act,  1873,  as  amended  by  the  Judicature  Act,  1874,  it  has  been 
enacted  that :  "  The  several  Courts  hereinafter  mentioned  (that  is  to  say) 
the  High  Court  of  Chancery  of  England,  the  Court  of  Queen's  Bench, 
the  Court  of  Common  Pleas  at  Westminster,  the  Court  of  Exchequer, 
the  High  Court  of  Admiralty,  the  Court  of  Probate,  the  Court  for  Divorce 
and  Matrimonial  Causes,  and  the  London  Court  of  Bankruptcy,  shall  be 
united  and  consolidated  together,  and  shall  constitute,  under  and  sub- 
ject to  the  provisions  of  this  Act,  one  Supreme  Court  of  Judicature  in 
England,"  styled,  since  the  Judicature  (Officer's)  Act,  1879,  the  Eoyal 
Courts  of  Justice. 

The  words  "  and  the  London  Court  of  Bankruptcy  "  were  repealed 
by  the  Judicature  Act,  1875,  ss.  9,  33,  and  second  schedule.  But  by 
the  Bankruptcy  Act,  1883,  ss.  93  and  94,  the  London  Bankruptcy  Court 
is  united  and  consolidated  with  the  Supreme  Court.  Although  the 
Divorce  Court  is  consolidated  with  the  Supreme  Court,  and  its  juris- 
diction transferred  to  the  High  Court  (Judicature  Act,  1873,  s.  16), 
proceedings  for  divorce  or  other  matrimonial  causes  are  exempted  from 
the  operation  of  the  Rules  of  Court,  by  Rules  of  the  Supreme  Court,  1883, 
Order  68,  r.  1. 

By  the  4th  section  of  the  Judicature  Act  of  1873  the  Supreme  Court 
was  divided  into  the  High  Court  of  Justice  and  the  Court  of  Appeal, 
thus, "  the  said  Supreme  Court  shall  consist  of  two  permanent  Divisions, 
one  of  which,  under  the  name  of  *  Her  Majesty's  High  Court  of  Justice,' 
shall  have  and  exercise  original  jurisdiction,  with  such  appellate  juris- 
diction from  inferior  Courts  as  is  hereinafter  mentioned,  and  the  other 
of  which,  under  the  name  of  *  Her  Majesty's  Court  of  Appeal,'  shall  have 
and  exercise  appellate  jurisdiction,  with  such  original  jurisdiction  as 
hereinafter  mentioned  as  may  be  incident  to  the  determination  of  any 
appeal."  [By  sec.  12  of  the  Supreme  Court  of  Judicature  Act,  1875, 
38  &  39  Vict.  c.  77,  two  Divisions  of  the  Court  of  Appeal  for  appellate 
purposes  were  constituted,  and  by  the  Supreme  Court  of  Judicature  Act, 
1902,  2  Edw.  VII.  c.  31,  power  was  given  to  sit  in  three  Divisions.]  By 
the  Interpretation  Act,  1889,  s.  13,  the  expression  "  Supreme  Court "  is 
to  mean  the  Supreme  Court  of  Judicature  in  England  or  Ireland,  as 
the  case  may  be,  or  other  branch  thereof. 

The  High  Coiirt  of  Justice. — This  Court,  as  constituted  by  the 
Judicature  Act  of  1873,  s.  5,  consisted  of  the  Lord  Chancellor,  the  Lord 
Chief  Justice  of  England,  who  was  to  be  President  of  the  High  Court  in, 
the  absence  of  the  Lord  Chancellor,  the  Master  of  the  Rolls,  the  Lord 
Chief  Justice  of  the  Common  Pleas,  the  Lord  Chief  Baron  of  the 
Exchequer,  the  Vice-Chancellors  of  the  High  Court  of  Chancery,  the 
judge  of  the  Probate  and  Divorce  Court,  the  puisne  justices  of  the 
Queen's  Bench  and  Common  Pleas,  the  junior  Barons  of  the  Exchequer, 
and  the  judge  of  the  High  Court  of  Admiralty,  except  such  of  them  as 
should  be  appointed  ordinary  judges  of  the  Court  of  Appeal.  Save  as 
by  the  Act  provided,  these  judges  are  to  have  equal  power,  authority,. 


SUPREME  COURT  725 

and  jurisdiction,  and  are  to  be  addressed  in  the  manner  then  customary 
in  addressing  the  judges  of  the  superior  Courts  of  Common  Law 
(Judicature  Act,  1873,  s.  5).  By  subsequent  legislation  the  Lord 
Chancellor  is  no  longer  to  be  deemed  a  permanent  judge  of  the  High 
Court,  and  the  provisions  relating  to  the  appointment  and  style  of  the 
judges  of  that  Court  (see  Judicature  Act,  1873,  s.  5)  are  not  to  apply  to 
him  (Judicature  Act,  1875,  s.  3).  The  Master  of  the  Rolls  has  also 
ceased  to  be  a  judge  of  the  High  Court,  and  is  now  by  virtue  of  his 
office  a  judge  of  the' Court  of  Appeal  (Judicature  Act,  1881,  s.  2),  and 
the  offices  of  Chief  Justice  of  the  Common  Pleas  and  Chief  Baron  of 
the  Exchequer  have  been  abolished  (see  Order  in  Council,  December 

16,  1880;  Judicature  Act,  1873,  s.  32;  Judicature  Act,  1881,  s.  25). 

At  the  present  time  (1908)  there  are  twenty-five  judges  of  the 
"  High  Court  of  Justice,"  namely,  the  Lord  Chancellor  (President)  and 
six  judges  of  the  Chancery  Division ;  the  Lord  Chief  Justice  of  Eng- 
land (President),  and  fifteen  judges  of  the  King's  Bench  Division ;  the 
President  and  a  judge  of  the  Probate,  Divorce,  and  Admiralty  Division. 

The  jurisdiction  of  the  High  Court,  which  is  a  Supreme  Court  of 
Record,  consists  of  such  as  was  at  the  commencement  of  Judicature 
Act,  1873,  vested  in  or  capable  of  being  exercised  by  all  or  any  of  the 
following  Courts,  namely — (1)  The  High  Court  of  Chancery  as  a  Common 
Law  Court  as  well  as  a  Court  of  Equity,  including  the  jurisdiction  of 
the  Master  of  the  Rolls;  (2)  the  Court  of  Queen's  Bench;  (3)  the 
Court  of  Common  Pleas  at  Westminster ;  (4)  the  Court  of  Exchequer, 
as  a  Court  of  Revenue  as  well  as  a  Common  Law  Court;  (5)  the 
High  Court  of  Admiralty;  (6)  the  Court  of  Probate;  (7)  the  Court 
of  Divorce  and  Matrimonial  Causes;  (8)  the  London  Court  of 
Bankruptcy  (Judicature  Act,  1873,  s.  16;  Judicature  Act,  1875,  s.  9; 
Bankruptcy  Act,  1883,  ss.  93,  94) ;  (9)  the  Court  of  Common  Pleas  at 
Lancaster;  (10)  the  Court  of  Pleas  at  Durham;  (11)  the  Courts  created 
by  Commissions  of  Assize,  of  Oyer  and  Terminer,  of  Gaol  Delivery, 
or  any  of  such  Commissions  (see  Judicature  Act,  1873,  ss.  16,  29), 
including  the  jurisdiction  vested  in  or  capable  of  being  exercised  by  all 
or  any  one  or  more  of  the  judges  of  the  said  Courts  respectively  sitting 
in  Court  or  chambers  or  elsewhere,  when  acting  as  judges  in  pursuance 
of  any  statute,  law,  or  custom,  and  all  powers  given  to  any  such  Court, 
or  to  any  such  judges  or  judge  by  any  statute,  and  also  all  ministerial 
powers,  duties,  and  authorities  incident  to  any  and  every  part  of  the 
jurisdiction  transferred  (Judicature  Act,  1873,  s.  16  ;  and  see  also  ss.  12, 

17,  76),  And  this  jurisdiction  is,  so  far  as  regards  procedure  and  prac- 
tice, to  be  exercised  as  provided  by  the  Act,  or  by  rules  of  Court  made 
under  it,  and  in  default  of  any  such  provision  or  rules,  in  the  same 
manner  as  it  might  have  been  exercised  by  such  Courts  before  the  Act 
(Judicature  Act,  1873,  s.  23). 

Divisions  of  High  Court. — The  Commissioners  in  the  report  referred 
to  further  recommended  that  the  Supreme  Court  which  they  proposed 
should  be  constituted  should  be  divided  into  as  many  Chambers  or  Divi- 
sions as  the  nature  and  extent  or  the  convenient  despatch  of  business 
might  require.  But  with  a  view  to  facilitate  the  transition  from  the 
old  to  the  new  system  and  to  make  the  proposed  change  at  first  as  little 
inconvenient  as  possible,  they  recommended  that  the  Courts  of  Chancery, 
Queen's  Bench,  Common  Pleas,  and  Exchequer  should  for  the  present 
retain  their  distinctive  titles,  and  should  constitute  so  many  Divisions 
of  the  Supreme  Court,  and  that  the  Courts  of  Admiralty,  Divorce,  and 


726  SUPEEME  COURT 

Probate  should  be  consolidated  and  form  one  Division.  The  Commis- 
sioners here  seem  to  have  used  the  term  "  Supreme  Court "  with 
reference  to  one  of  its  branches,  namely,  the  High  Court  of  Justice 
(cp.  Interpretation  Act,  1889,  s.  13). 

These  recommendations  were,  substantially,  carried  into  effect  by 
sec.  31  of  the  Judicature  Act,  1873,  which  divided  the  High  Court  into 
five  Divisions,  namely,  the  Chancery,  the  Queen's  Bench,  the  Common 
Pleas,  the  Exchequer,  and  the  Probate,  Divorce,  and  Admiralty  Divi- 
sions, each  consisting  of  a  president  and  certain  judges.  But  by  an 
Order  in  Council  of  the  16th  of  December  1880,  made  under  the  32nd 
section  of  the  Judicature  Act  of  1873,  the  Queen's  Bench,  Common 
Pleas,  and  Exchequer  Divisions  were  consolidated  into  one  Division, 
namely,  the  Queen's  Bench  Division,  with  the  Lord  Chief  Justice  of 
England  as  its  president,  and  all  statutory  powers  given  to  the  Lord 
Chief  Justice  of  the  Common  Pleas  or  to  the  Lord  Chief  Baron  of  the 
Exchequer  were  made  exercisable  by  him. 

All  causes  and  matters  commenced  in  the  High  Court  of  Justice 
were  distributed  amongst  and  assigned  to  these  Divisions  respectively 
(Judicature  Act,  1873,  ss.  33  and  34;  Judicature  Act,  1875,  s.  11),  sub- 
ject, however,  to  the  power  of  transfer  (Judicature  Act,  1873,  s.  36 ; 
E.  S.  C,  Order  49),  and  of  retainer  (Judicature  Act,  1875,  s.  11). 

[Court  of  Criminal  Apjjeal. — From  the  personnel  of  the  King's  Bench 
Division  the  legislature  has  erected  a  Court  of  Criminal  Appeal,  which 
consists  of  the  Lord  Chief  Justice  and  eight  judges  of  the  Division 
appointed  by  the  Lord  Chief  Justice  with  the  consent  of  the  Lord 
Chancellor.  The  Court  is  constituted  on  a  summons  by  the  Lord  Chief 
Justice,  and  its  quorum  is  three  or  any  greater  (uneven)  number  of 
judges.  The  Lord  Chief  Justice,  if  present,  or,  in  his  absence,  the  senior 
judge,  is  President  of  the  Court.  The  Court  may  sit  in  two  Divisions, 
and  will  always  sit  in  London  unless  the  Lord  Chief  Justice  gives  special 
directions  for  it  to  sit  in  some  other  place.  The  conditions  under  which 
appeals  may  be  made  to  this  Court  are  laid  down  in  the  Act.  See  the 
Criminal  Appeal  Act,  1907,  7  Edw.  vii.  c.  23.  This  Act  does  not  affect 
the  Crown's  prerogative  of  mercy.] 

Divisionxil  Courts. — With  regard  to  the  difficult  and  important 
question  as  to  the  number  of  judges  who  should  sit  ordinarily  in  each 
Division  of  the  Supreme  Court  {sic),  the  Commissioners  observed  upon 
the  difference  that  existed  between  the  Court  of  Chancery  and  the 
Court  of  Probate,  Divorce,  and  Admiralty  on  the  one  hand,  and  the 
Common  Law  Courts  on  the  other,  pointing  out  that  in  the  former 
a  single  judge  adjudicated  on  all  matters,  as  a  Court  of  first  instance, 
whilst  in  the  sittings  of  the  Common  Law  Courts  "  in  banc,"  the  Court 
ordinarily  consisted  of  four  judges  (see  Banc),  although  the  matters 
adjudicated  upon  by  a  single  judge  in  the  Court  first  mentioned  were  in 
many  instances  as  important  as  those  transacted  before  four  judges,  and 
they  considered  that  having  regard  to  the  facilities  of  appealing  which 
they  proposed  to  suggest  in  future,  matters  of  great  importance  might 
be  intrusted  to  the  jurisdiction  of  a  single  judge.  However,  in  order  to 
avoid  any  too  violent  transition  from  the  modes  of  conducting  judicial 
business,  they  recommended  that  a  single  judge  of  the  Common  Law 
Division  should  be  authorised  to  transact  such  business  as  might  be 
remitted  to  him  by  general  or  special  orders  or  by  consent  of  parties, 
but  that  matters  then  disposed  of  "in  banc"  (see  Banc)  should  be 
determined  by  not  more  than  three  judges.      This  recommendation 


SUPKEME  COUET  727 

was  carried  out  in  substance  by  the  Judicature  Act,  1873,  ss.  40,  41,  42, 
43,  44,  46.  These  sections  were  subsequently  repealed  by  the  Appel- 
late Jurisdiction  Act,  1876,  s.  17,  so  far  as  "they  were  inconsistent" 
with  the  last-mentioned  section,  which  provides  that  every  action  and 
proceeding  in  the  High  Court,  and  all  business  arising  out  of  the 
same,  except  as  thereinafter  provided,  should,  so  far  as  is  practicable 
and  convenient,  be  heard,  determined,  and  disposed  of  before  a  single 
judge.  But  it  is  provided  that  Divisional  Courts  of  two  or  more  (see 
the  last-mentioned  section  and  Judicature  Act,  1884,  s.  4)  judges  may 
be  held  for  the  transaction  of  any  business  which  may  for  the  time 
being  be  ordered  by  rules  of  Court  to  be  held  by  a  Divisional  Court. 
Such  rules  have  been  made  from  time  to  time  and  repealed.  Those 
which  are  now  (1908)  current  are  contained  in  K.  S.  C.,  1883,  Order 
59,  which  defines  the  proceedings  and  matters  to  be  heard  and  deter- 
mined by  Divisional  Courts,  but  nothing  therein  contained  is  to  be 
construed  so  as  to  take  away  or  limit  the  powers  of  a  single  judge 
to  hear  and  determine  any  such  proceedings  or  matters  in  any  case 
in  which  he  has  theretofore  had  power  to  do  so  (see  Order  59,  r.  1). 

The  working  of  Divisional  Courts  has  not  given  satisfaction  to 
the  profession.  Mr.  Justice  Cave,  in  his  memorandum  of  July  6, 
1892,  upon  the  Eeport  of  the  Council  of  Judges,  says:  "The  juris- 
diction of  these  Courts  has  been  gradually  diminished  by  sending — 
(1)  appeals  from  a  judge  of  the  High  Court,  and  (2)  motions  for  new 
trials  to  the  Court  of  Appeal  direct."  This  last-mentioned  improve- 
ment was  effected  by  the  Judicature  Act,  1890,  53  &  54  Vict.  c.  44, 
known  as  Sir  R.  B.  Finlay's  Act,  which  its  authors  intended  should 
have  had  a  wider  scope  (Hansard,  vol.  346,  p.  1250).  Sir  Lewis  Cave 
continued:  "In  my  judgment  the  whole  of  the  business  of  the  Divi- 
sional Courts  should  either  be  transacted  by  a  single  judge,  or  where 
that  is  not  desirable,  be  transferred  to  the  Court  of  Appeal.  As 
matters  now  stand,  a  Divisional  Court  of  the  Queen's  Bench  Division 
can  be  formed  in  seven  difiereut  ways  of  entirely  different  members, 
the  result  of  which  is  a  very  great  variety  of  decision  on  questions 
of  discretion  and  as  to  costs.  ...  A  Court  of  two  is  very  little,  if 
at  all,  better  than  a  Court  of  one,  the  more  active  and  energetic 
member  almost  invariably  imposing  his  view  on  his  more  apathetic 
colleague;"  and  he  recommended  that  Divisional  Courts  should  be 
abolished,  and  the  Bar  Committee  (Annual  State.,  1892-93)  and  a 
committee  of  the  Incorporated  Law  Society  (1883)  were  of  the  same 
opinion. 

By  the  Judicature  Act,  1894,  57  &  58  Vict.  c.  16,  considerable 
restrictions  are  placed  upon  the  right  of  appeal  in  general,  and  it  is 
especially  provided  that  "  in  matters  of  practice  and  procedure  every 
appeal  from  a  judge  shall  be  to  the  Court  of  Appeal,"  but  in  other 
matters  in  the  Queen's  Bench  Division  it  would  seem  that  an  appeal 
from  a  judge  at  chambers  is  still  to  a  Divisional  Court  (Order  54,  r.  23). 
(On  this  point  see  the  note  to  the  Order  in  the  Annual  Practice.) 
Also  by  sec.  1,  subs.  5  of  the  last-mentioned  Act,  in  all  cases  where 
there  is  a  right  of  appeal  to  the  High  Court  from  any  Court  or  person, 
the  appeal  is  to  a  Divisional  Court,  the  decision  of  which  is  final  unless 
leave  to  appeal  is  given  by  that  Court  or  by  the  Court  of  Appeal. 

As  to  the  Central  Office  of  the  Supreme  Court,  see  Judicature 
(Officers)  Act,  1879,  s.  4 ;  R.  S.  C,  Order  61 ;  and  Masters  of  the 
Supreme  Court.    As  to  pensions,  see  J.  A.  1873,  ss.  13, 15. 


728  SUKCHARGE 

Court  of  Appeal  (see  also  Appeals). — A  strong  Court  of  final  appeal 
was  one  of  the  main  objects  of  those  who  were  responsible  for  the 
Judicature  Act  of  1873.  It  was  the  intention  of  its  authors  that  this 
final  appeal  should  be  exceedingly  strong,  fifteen  judges  being  the 
number  suggested  by  the  Commissioners  in  their  first  report,  and 
also  that  it  should  be  the  sole  Court  of  Appeal,  embracing  all  the 
superior  Appellate  Courts  and  jurisdictions.  Sees.  21  and  22  of  the 
Act  of  1873  carried  out  this  view  by  vesting  the  appellate  jurisdiction 
of  the  House  of  Lords  and  of  the  Judicial  Committee  of  the  Privy 
Council  in  the  Court  of  Appeal  established  by  the  Act.  These  sections, 
however,  were  suspended  by  the  Judicature  Act  of  1875,  and  repealed 
by  the  Appellate  Jurisdiction  Act  of  1876,  and  the  system  of  "  double 
appeals "  condemned  by  the  great  law  reformers  of  1873  was  thereby 
re-established. 

[It  is  provided  by  the  Supreme  Court  of  Judicature  Act,  1899,  62  & 
63  Vict.  c.  6,  that  by  consent  all  parties  may  agree  to  a  cause  being 
heard  by  two  judges  of  the  Court  of  Appeal  instead  of  three.  In  case 
of  a  division  of  opinion  an  application  may  be  made  for  a  rehearing  by 
three  judges. 

Authoi'ities. — In  addition  to  those  cited  in  the  text  the  general 
development  of  the  English  legal  system  is  recorded  in  Stubbs's  Con- 
stitutional History,  and  useful,  though  shorter,  chapters  on  the  subject 
will  be  found  in  Carter's  History  of  Legal  Institutions,  1906  ed. ;  and 
Unglish  Legal  History,  1899  ed.] 

Surcharg^e. — See  Guardians  of  the  Poor. 

Surcharge  and  Falsify. — See  Account,  Settled. 

Sureties. — See  Bail;  Guarantee;  Principal  and  Surety. 
Sureties  in  Civil  Cases. — See  Guarantee  ;  Principal  and  Surety. 
Sureties  of  the  Feojce. — A  person  may  be  bound  over  to  keep  the 
peace,  and  (or)  to  be  of  Good  Behaviour — 

(1)  If  Articles  of  the  Peace  are  exhibited  against  him,  or  the 
corresponding  summary  procedure  under  42  &  43  Vict.  c.  49,  s.  25,  is 
followed  (Paley,  Summary  Convictions,  8th  ed.,  326;  Stone,  Justices 
Manual). 

(2)  On  conviction  of  any  misdemeanor. 

(3)  On  conviction  of  any  felony,  except  murder,  specified  in  the 
Criminal  Law  Consolidation  Acts  of  1861 ;  and 

(4)  On  release  of  an  offender  on  Probation. 

The  mode  in  which  this  is  effected  is  by  requiring  him  to  enter  into 
a  Eecognisance  with  or  without  one  or  more  sureties  with  a  condition 
to  keep  the  peace,  etc.,  for  the  prescribed  time. 

The  forms  of  recognisance  in  use  in  the  High  Court  will  be  found  in 
Short  and  Mellor,  Cr.  Pr.,  2nd  ed.,  580,  those  in  use  in  Courts  of  sum- 
mary jurisdiction,  in  the  Summary  Jurisdiction  Eules,  1886,  Form  36. 

In  case  of  a  conviction  on  indictment  the  power  to  require  sureties 
of  the  peace  is  given  to  the  Courts  by  virtue  of  their  commissions  in 
cases  of  misdemeanor;  by  statute  as  to  felonies  other  than  murder 
dealt  with  by  the  Consolidation  Act  of  1861,  and  by  statute  as  to 
offences  within  the  Probation  of  Offenders  Act,  1907.  In  the  case  of 
summary  convictions  the  power  arises  under  sec.  25  of  the  Summary 
Jurisdiction  Act,  1879,  and  the  Probation  of  Offenders  Act,  1907. 


SUENAME  729 

The  recognisances  if  taken  by  parties  out  of  sessions  are  returned  to 
Quarter  Sessions  (16  &  17  Vict.  c.  30,  s.  2),  except  in  cases  where  they 
are  enforceable  by  a  Court  of  summary  jurisdiction  (42  &  43  Vict.  c.  49, 
s.  25).  On  refusal  to  find  such  sureties  a  Quarter  Sessions  may  award 
imprisonment  for  not  over  twelve  months  (16  &  17  Vict.  c.  30,  s.  3);  a 
petty  sessional  Court  may  award  imprisonment  for  not  over  six  months ; 
a  single  justice,  imprisonment  for  not  over  fourteen  days  (42  &  43  Vict, 
c.  49,  s.  25). 

See  Articles  of  the  Peace  ;  Good  Behaviour  ;  Peace,  The  ;  Pro- 
bation OF  Offenders  ;  Kecognisance. 

Surg'eon. — To  act  in  strictness  as  a  surgeon,  something  must 
be  done  by  the  hand  {per  Knight  Bruce,  L.J.,  in  Ex  parte  Crahb,  In  re 
Palmer,  1856,  25  L.  J.  Bk.  49) ;  his  business  properly  is  with  external 
ailments  and  injuries  of  the  limbs,  and  not  with  prescribing  and  dis- 
pensing medicine,  except  as  part  of  surgical  treatment  {per  Best,  C.J., 
in  Allison  v.  Haydon,  1828,  4  Bing.  621 ;  'per  Cresswell,  J.,  in  Apothe- 
caries Co.  V.  LotiTiga,  1843,  2  M.  &  R.  499).  Now,  a  person  registered 
under  the  Medical  Act,  1886,  is  entitled  to  practise  medicine,  surgery, 
and  midwifery,  and  to  sue  for  his  fees  (s.  6).  See  Medicine,  Medical 
Practitioner. 

Surname. — The  name  added  to  a  person's  Christian  name  (see 
Christian  Name)  ;  the  name  common  to  all  the  members  of  a  family. 
A  person  usually  bears  the  surname  of  his  father,  but  if  he  so  pleases 
he  may  change  it  for  another  name,  and  it  is  not  necessary  that  he 
should  take  any  formal  step  to  efiectuate  this  {Davies  v.  Lovmdes,  1835, 
1  Bing.  N.  C.  618),  unless,  indeed,  he  changes  his  name  in  compliance 
with  the  injunction  of  a  name  and  arms  clause  (see  Name  and  Arms 
Clause;  Settlements)  in  a  will  or  settlement,  which  may,  and  fre- 
quently does,  provide  that  an  application  shall  be  made  for  a  royal 
licence  permitting  the  assumption  of  the  new  arms  and  surname. 
Although,  however,  a  person  may  assume  a  new  surname  without  taking 
any  formal  step  in  connection  therewith,  it  is  usual,  for  evidential  pur- 
poses, to  notify  the  change  in  some  public  way.  The  more  cumbersome, 
expensive,  and  unnecessary  way  is  to  apply  for  a  royal  licence — the 
stamp  duty  payable  being  fifty  pounds  if  the  application  is  made  in 
compliance  with  the  requirements  of  a  name  and  arms  clause  in  a 
settlement  or  will,  and  ten  pounds  if  the  application  is  voluntarily  made 
(Stamp  Act,  1891,  Sched.  1),  together  with  heavy  fees  exacted  by  the 
Herald's  Officer.  The  usual  course  is  to  advertise  the  change  of  name 
in  the  newspapers,  and  execute  a  deed  poll  formally  setting  out  the 
change,  enrolling  the  same  in  the  Central  Office  of  the  Supreme  Court. 

Except  where  the  name  to  be  assumed  is  prescribed  by  a  name  and 
arms  clause,  a  person  is  at  liberty  to  choose  and  bear  any  name  he  likes. 
He  cannot  be  prevented  from  taking  any  particular  name,  as,  except  the 
right  to  a  trade  name  (see  Trade  Name),  English  Law  does  not  recog- 
nise the  absolute  right  of  a  person  to  a  particular  name  to  the  extent  of 
entitling  him  to  prevent  its  assumption  by  another  {per  Lord  Chelmsford 
in  Du  B&iday  v.  Du  Boulay,  1869,  L.  R.  2  P.  C.  441).  A  person  who 
takes  a  new  name  by  Act  of  Parliament  does  not  lose  his  original  name ; 
he  may  take  a  legacy  by  it,  and  a  royal  licence  is  only  a  permission  to 
use  a  name;  it  does  not  impose  it  {Leigh  v.  Leigh,  1808,  15  Ves.,  at  p. 
100 ;  33  E.  R.,  at  p.  693). 


730  SUEPLICE  FEES 

A  woman  on  her  marriage  takes  her  husband's  name,  and  she  retains 
it  although  the  marriage  may  have  been  dissolved  by  divorce,  unless 
she  has  so  far  obtained  another  name  by  repute  as  to  obliterate  the 
original  name  {Fendall  v.  Goldsmid,  1877,  2  P.  D.  263 ;  see  also  Cowley 
v.  Cowley,  [1901]  A.  C.  450). 

A  bastard  may  be  baptised,  and  so  gain  a  Christian  name,  but  other- 
wise has  no  name  except  what  he  or  she  may  acquire  by  reputation  (see 
Bastard). 

FORM. 

Form  of  Advertisement  on  Change  of  Name. 

I,  John  Jones,  of  Jonestown,  in  the  County  of  Glamorgan,  Wales, 
merchant,  hereby  give  public  notice  that  I  have  assumed,  and  from 
henceforth  upon  all  occasions,  intend  to  sign  and  use,  and  to  be  called 
and  to  be  known  by,  the  surname  of  Montmorenci  only  in  place  of  my 
present  surname  of  Jones ;  and  further,  that  such  intended  change  of 
name  is  formally  declared  and  evidenced  by  a  deed  poll  ^  under  my  hand 
and  seal  bearing  date  this  day  of  19     »  and  intended 

forthwith  to  be  enrolled  in  the  Central  Office  of  the  Supreme  Court  of 
Judicature.  In  witness  whereof  I  now  sign  and  subscribe  myself  by 
my  intended  future  name. 

Dated  this  day  of  19     . 

(Signed)        John  Montmorenci. 

Witness. 

^  The  deed  poll  follows  the  wording  of  the  advertisement,  and  is  enrolled 
in  the  Central  Office. 


Surplice  Fees — Those  fees  and  dues  which  are  payable  on 
burials,  marriages,  and  the  like.  It  is  said  that  none  are '  due  to  the 
minister  as  of  common  right,  but  that  they  depend  upon  special  custom 
only  (2  Steph.  Com.,  11th  ed.,  pp.  750,  751,  quoted  by  Kay,  J.,  in  Stewart 
V.  West  Derby  Burial  Board,  1886,  34  Ch.  D.  339). 

Surplusa.g'e. — Surplusage  comes  of  the  French  surplus,  that  is, 
an  over-plus,  and  signifies  in  the  law  an  addition  of  more  than  needs, 
which  sometimes  is  the  cause  that  a  writ  shall  abate ;  but  in  pleading 
many  times  it  is  absolutely  void,  and  the  residue  of  the  plea  shall  stand 
good  (see  Termes  de  la  Ley). 

Surplusage  is  not  uncommon  in  Acts  of  Parliament  (see  In  re  Bank 
of  London,  etc.,  1871,  L.  R.  6  Ch.,  at  p.  426).  The  words  of  a  statute  never 
should  in  interpretation  be  added  to  or  subtracted  from,  without  almost 
a  necessity  (see  Cowper  Essex  v.  Local  Board  for  Acton,  1889, 14  App.  Cas., 
at  p.  169). 

Although  it  may  not  always  be  possible  to  give  a  meaning  to  every 
word  used  in  an  Act  of  Parliament,  yet,  as  a  general  rule,  it  is  right  not 
to  treat  words  as  surplusage,  if  a  meaning  can  be  fairly  given  to  them 
(see  Yorkshire  Insurance  Co.  v.  Clayton,  1881,  8  Q.  B.  D.,  at  p.  424). 

[^Authority. — Hardcastle  on  Statutes.'] 

Surrebutter;  Surrejoinder.— See  Pleading — Before 
the  Judicature  Acts. 


SUKEENDER  731 

Surrender. — Surrender,  says  Lord  Coke,  is  the  yielding  up  an 
estate  for  life  or  years  to  him  that  hath  an  immediate  estate  in  rever- 
sion or  remainder,  wherein  the  estate  for  life  or  years  may  "  drown  "  by 
mutual  agreement  between  them  (Co.  Litt.  337&).  Like  a  lease,  it  may 
be  either  express  or  implied.  Implied  surrenders  are  generally  referred 
to  as  surrenders  by  operation  of  law,  and  will  be  dealt  with  hereafter. 
Express  surrenders,  as  will  be  presently  seen,  are  within  the  Statute  of 
Frauds. 

For  an  express  surrender  two  things  on  the  part  of  the  surrenderor 
are  necessary — first,  he  must  be  in  possession  (Co.  Litt.  338a),  and, 
secondly,  he  must  give  up  the  whole  of  the  interest  granted  to  him  by 
the  lease  {Burton  v.  Barclay,  1831,  7  Bing.  745).  It  follows  that  before 
he  has  entered  on  the  demised  premises  a  surrender  by  the  lessee  is 
ineffectual,  but  when  entry  has  once  taken  place  and  the  lessee  has 
assigned  his  interest  to  a  third  party,  the  legal  possession  having  been 
transferred  by  the  assignment,  the  assignee  may  himself  surrender  before 
entry  (Bac.  Abr.,  "  Leases,"  S.  2,  2).  This,  however,  will  not  enable  the 
administrator  of  a  tenant  to  surrender  his  interest  before  letters  of 
administration  have  been  granted  to  him  (see  R.  v.  Great  Glenn,  1833, 
5  Barn.  &  Adol.  188),  for  the  whole  measure  of  his  authority  is  derived 
from  the  grant  (1  Williams  on  Executors,  10th  ed.,  314). 

Statutory  power  to  surrender  leases  granted  to  a  lunatic  has,  with 
a  view  to  their  renewal,  been  conferred  on  his  committee,  subject  to 
conditions  to  be  approved  by  the  Judge  in  Lunacy,  by  53  Vict.  c.  5, 
8.  120. 

As  regards  the  persons  to  whom  surrenders  may  be  made,  it  may  be 
said  that  the  proper  surrenderee  is  the  owner  of  the  legal  reversion 
immediately  expectant  on  the  lease  (Co.  Litt.  3376),  and  it  makes  no 
difference  that  his  estate  be  less  than  that  granted  by  the  lease  (Bac. 
Abr.,  "  Leases,"  S.  1,  2).  As  a  result  of  this  rule,  there  can  be  no  valid 
surrender  from  an  underlessee  to  the  head  landlord  (Shep.  Touch.  303), 
unless  there  has  been  a  previous  surrender  by  the  mesne  lessor  to  the 
latter  (Bac.  Abr., "  Leases,"  S.  2, 1) ;  a-lthough  there  is  no  objection  to  the 
lessee  and  underlessee  joining  together  in  order  to  effect  the  surrender 
(ibid.).  So  where  a  mortgagor  made  a  demise  under  the  provisions  of 
the  Conveyancing  Act,  1881, 44  &  45  Vict.  c.  41,  s.  18,  it  was  held  that  as 
the  effect  of  the  Act  was  only  to  enable  him  to  carve  an  interest  out  of 
the  estate  of  the  mortgagee,  a  surrender  by  the  tenant  to  him  was  invalid, 
the  immediate  reversion  expectant  on  the  lease  being  still  vested  in  the 
mortgagee  {Bobbins  v.  Whyte,  [1906]  1  K.  B.  125). 

Statutory  power  to  accept  surrenders  in  the  case  of  leases  granted 
by  persons  under  disability  is  conferred,  with  the  object  of  renewing  such 
leases,  in  the  case  of  infants  and  married  women,  under  the  direction  of 
the  Chancery  Division  of  the  High  Court  (11  Geo.  iv.  &  1  Will.  iv. 
0.  65,  8.  12),  and  in  the  case  of  the  committee  of  a  lunatic  so  found  by 
inquisition  under  the  direction  of  the  Judge  in  Lunacy  (53  Vict.  c.  5, 
8.  120).  Moreover,  a  tenant  for  life  under  the  Settled  Land  Act,  1882, 
45  &  46  Vict.  c.  38,  may  accept,  with  or  without  consideration,  a  surrender 
of  any  lease  of  settled  land,  whether  made  under  the  Act  or  not,  and  in 
respect  of  the  whole  land  or  any  part  of  it,  with  or  without  an  exception 
of  all  or  any  of  the  mines  and  minerals  therein,  or  in  respect  of  mines 
and  minerals  alone  or  any  of  them  (s.  13) ;  and  he  may  also  accept  a 
surrender  of  a  contract  for  a  lease  in  the  same  manner  and  on  the  same 
terms  as  those  on  which  he  may  accept  a  surrender  of  a  lease  (s.  31). 


732  SURRENDER 

This  provision  applies  not  merely  to  an  express  surrender,  but  to  a 
surrender  implied,  as  will  be  presently  explained,  by  operation  of  law 
{Easton  v.  Penny,  1892,  67  L.  T.  290). 

By  the  Statute  of  Frauds,  29  Car.  ii.  e.  3,  it  is  provided  (s.  3)  that 
no  leases,  either  of  freehold  or  terms  of  years,  or  any  uncertain  interest 
not  being  copyhold  in  any  lands  or  hereditaments,  shall  be  surrendered 
unless  it  be  by  deed  or  note  in  writing,  signed  by  the  surrenderors  or- 
their  agents  thereunto  lawfully  authorised  by  writing.  This,  by  the 
terms  of  the  statute,  does  not  apply  to  surrenders  by  operation  of  law, 
but  it  applies  to  all  express  surrenders,  even  of  leases  which,  being  for 
terms  not  exceeding  three  years,  and  reserving  a  rent  amounting  to  at 
least  two-thirds  of  the  full  improved  value  of  the  premises,  need  not 
themselves  (by  s.  2)  be  in  writing  {Taylor  v.  Chapman,  1795,  Peake,  Ad. 
Ca.  19 ;  4  R.  R.  884).  And  as  regards  leases  which  are  not  within  sec.  2, 
and  which  are  therefore  required  for  their  validity  to  be  in  writing,  it 
is  now  provided  by  the  Act  for  the  amendment  of  real  peoperty  (8  &  9 
Vict.  c.  106),  that  surrenders  are  void  at  law  unless  made  by  deed  (s.  3). 
With  the  above  reservation  no  particular  form  of  words  is  necessary  for 
a  surrender  (Bac.  Ahr.,  "  Leases,"  S.  1,  1) ;  but  the  Statute  of  Frauds,  as 
has  been  seen,  requires  a  deed  or  note  in  writing,  and  nothing  can  con- 
sequently amount  to  a  valid  surrender  unless  it  affords  presumption  of 
the  existence  of  such  a  memorandum.  Hence  cancellation,  for  instance, 
of  a  lease  by  mutual  consent,  evidenced  by  destruction  of  a  material 
part,  e.ff.  the  seals,  or  the  names  of  the  parties,  will  be  insufficient 
(  Wootley  v.  Gregory,  1828,  2  Y.  &  J.  536  ;  31  R.  R.  626  ;  Doe  v.  Thomas, 
1829,  9  Barn.  &  Cress.  288 ;  32  R.  R.  680). 

An  express  surrender,  as  it  is  held,  cannot  be  made  to  take  place 
infuturo  (  Waldall  v.  Capes,  1836, 1  Mee.  &  W.  50 ;  Doe  v.  Milward,  1838, 
3  Mee.  &  W.  328  ;  49  R.  R.  621),  and  it  follows  that  an  invalid  notice  to 
quit  cannot  take  effect  as  an  express  surrender  {Johnstone  v.  Hudlestone, 
1825,  4  Barn.  &  Cress.  922  ;  28  R.  R.  505).  Nor  does  it  make  any  differ- 
ence that  it  be  in  writing,  and  that  it  have  been  accepted  as  valid  by  its 
recipient  {Bessell  v.  Landsherg,  1845,  7  Q.  B.  638 ;  68  R.  R.  531).  But  there 
seems  no  reason  why,  with  the  equitable  jurisdiction  now  possessed  by  all 
Courts,  a  surrender  infuturo,  or  an  invalid  notice  to  quit  duly  accepted 
by  the  other  party  to  a  tenancy,  should  not  enure  as  a  binding  agreement 
to  surrender,  enforceable  if  necessary  (see  R.  S.  C,  1883,  Order  42,  r.  30 ; 
Jud.  Act,  1884,  47  &  48  Vict.  c.  61,  s.  14)  by  an  order  for  the  execution  of 
a  proper  deed  of  surrender  at  the  time  agreed  on.  And  it  has,  moreover, 
been  held  that  a  parol  agreement  by  a  tenant  to  surrender  his  tenancy 
could  be  enforced  against  him,  where  the  landlord  had  acted  upon  it  by 
entering  into  an  agreement  for  sale  with  a  third  party,  by  an  application 
of  the  doctrine  of  estoppel  {Fenner  v.  Blake,  [1900]  1  Q.  B.  426). 

A  surrender  need  not  extend  to  the  whole  of  the  demised  premises 
{Holme  V.  BrunsMll,  1878,  3  Q.  B.  D.  495),  and  it  may  be  made  subject 
to  the  performance  of  a  condition,  the  effect  being  that  the  interest 
granted  by  the  lease  will  revest  if  the  condition  be  broken  or  remain 
unperformed(Co.  Litt.  2186;  Coupland  v.  Maynard,  1810,  12  East,  134). 
And  where  an  express  surrender  of  a  lease  is  made  for  a  consideration 
which  afterwards  fails,  e.g.  where  the  consideration  is  the  grant  of  a 
new  lease,  and  such  new  lease  is  subsequently  avoided,  the  condition  not 
being  performed,  the  original  lease  remains  on  foot  (see  Doe  v.  Poole, 
11  Q.  B.  713;  75  R.  R.  607),  unless  it  appear  clearly  that  the  intention 
of  the  parties  was  not  to  make  the  surrender  only  in  consideration  of 


SUEEENDER  733 

the  new  lease  {Doe  v.  Bridges,  1831,  1  Barn.  &  Adol.  847;  35  E.  E. 
483). 

There  are  two  principal  ways  in  which  surrenders  of  tenancies  take 
place  by  operation  of  law — first,  where  the  lessee  accepts  a  new  interest 
in  the  demised  premises  from  his  landlord ;  and,  secondly,  where  he  gives 
up  possession  of  them  with  his  consent. 

Where  the  tenant  accepts  a  new  demise  during  the  currency  of  his 
own,  he  is  held  to  have  surrendered  his  former  interest  because  he  has 
done  an  act  of  which,  as  against  himself,  he  is  afterwards  estopped  from 
disputing  the  validity,  and  which  would  not  be  valid  unless  the  first 
demise  were  at  an  end  {Lyon  v.  Reed,  1844, 13  Mee.  &  W.  285 ;  67  E.  E. 
593).  So  long  as  the  new  lease  is  valid,  the  manner  of  its  creation  is 
immaterial ;  so  that  the  acceptance  of  a  new  parol  demise  may  operate 
as  a  surrender  of  a  lease  by  deed  {Com.  Dig.,  "  Surrender,"  I.  1),  and  the 
length  of  the  new  lease  as  compared  with  the  former,  and  the  time  of  its 
commencement,  are  equally  unimportant  {Ive's  Case,  1597, 5  Co.  Eep.  11a). 
If,  however,  the  second  lease  is  only  to  operate  on  the  occurrence  of  an 
event  which  may  or  may  not  occur  during  the  currency  of  the  demise, 
the  surrender,  which  is  a  conditional  surrender  within  the  meaning  of 
what  has  already  been  said  on  this  subject,  operates  only  as  a  surrender 
of  that  part  of  the  term  which  commences  from  the  occurrence  of  the 
event  (Bac.  Abr.,  "  Leases,"  S.  2, 1).  Where  there  is  more  than  one  lessee, 
and  the  acceptance  of  a  new  lease  is  by  one  of  them  only,  the  surrender 
operates  only  as  to  his  own  share  (Shep.  Touch.  302 ;  EoLston  v.  Penny, 
1892,  67  L.  T.  290).  Where,  again,  the  new  lease  accepted  by  the  tenant 
comprises  a  part  only  of  the  premises  included  in  the  demise,  the  sur- 
render by  operation  of  law  extends  only  to  the  part  included  in  the 
new  demise  (2  Eo.  Abr.,  498).  Surrender  by  operation  of  law  may  also 
be  effected  where  the  lessee  accepts  from  the  lessor  an  interest  in  the 
premises  which  is  inconsistent  with  the  lease :  for  example,  a  mere 
servant's  interest  in  place  of  his  own  {Peter  v.  Kendal,  1827,  6  Barn.  & 
Cress.  703 ;  30  E.  E.  504),  or  the  grant  of  a  rent  issuing  from  the  demised 
land  (Bac.  Abr.,  "  Leases,"  S.  2,  3).  This  is  for  the  reason  already  stated, 
that  he  cannot  dispute  the  validity  of  his  act,  and  that  this  act  is  incon- 
sistent with  the  continuance  of  his  former  interest  {Lyon  v.  Peed,  supra). 
Similarly,  where  the  tenant  makes  a  valid  assignment  of  his  interest  to  his 
landlord,  whether  by  way  of  mortgage  or  otherwise  {Doe  v.  Ridout,  1814, 
5  Taun.  519;  Cottee  v.  Richardson,  1851,  7  Ex.  Eep.  143;  86  E.  E.  585), 
or  re-demises  to  him  for  the  whole  term,  reserving  rent  {Smith  v.  Maple- 
back,  1786,  1  T.  E.  441 ;  1  E.  R.  247),  the  result  is  likewise  a  surrender 
by  operation  of  law. 

Difficulties  sometimes  arise  as  to  the  effect  of  a  new  lease  operating 
as  a  surrender  of  a  former  lease  in  the  case  where  such  new  lease  turns 
out  to  be  invalid.  It  seems  clear  that  if  the  new  lease  be  void  altogether, 
its  grant  cannot  operate  as  a  surrender  of  the  former.  If,  however,  it  be 
voidable  and  not  void,  and  it  be  afterwards  avoided,  the  effect  of  its 
acceptance  as  a  surrender  of  the  former  will  depend  on  whether  such 
avoidance  be  in  accordance  with,  or  contrary  to,  the  intention  of  the 
parties.  Where,  for  example,  it  is  granted  subject  to  a  condition,  and 
avoided  because  such  condition  is  broken,  there  is  none  the  less  a 
surrender  (Bac.  Abr.,  "  Leases,"  S.  2, 1).  Where,  on  the  other  hand,  it  is 
avoided  because  it  proves  to  be  in  fraud  of  a  power,  it  passes  no  interest 
according  to  the  contract,  although  previous  to  its  avoidance  it  might 
have  conveyed  part  of  the  term  contracted  for  {Roe  v.  Archbishop  of 


734  SUERENDEK 

York,  1805,  6  East,  86;  8  R  R  413;  Doe  v.  Poole,  1848,  11  Q.  B.  713; 

75  R.  R.  607).  That  the  consideration  or  part  of  the  consideration  for 
the  grant  of  the  second  lease  may  expressly  purport  to  be  the  surrender 
of  the  first  is  immaterial  (Doe  v.  Coiurtenay,  1848, 11  Q.  B.  702 ;  75  R  R. 
600;  Edston  v.  Penny,  1892,  67  L.  T.  290,  where  the  second  lease  was 
invalid  by  reason  of  a  statute). 

The  law  on  the  subject  has  been  laid  down  in  a  modern  case  as 
follows : — "  The  acceptance  of  a  new  lease  operates  as  an  implied  sur- 
render by  operation  of  law  of  the  old  lease  within  the  meaning  of  sec.  3 
of  the  Statute  of  Frauds,  but  such  surrender  differs  from  an  actual 
surrender  by  deed :  it  is  not  absolute ;  it  is  subject  to  an  implied  con- 
dition that  the  new  lease  is  good,  and  if  this  is  not  so  the  old  lease 
remains  in  force"  {Knight  v.  Williams,  [1901]  1  Ch.  256,  per  Cozens- 
Hardy,  J.).  Where,  therefore,  a  lessor  agreed  to  accept  a  surrender  of  a 
lease  and  to  grant  a  new  lease  to  the  lessee,  it  was  held  that  he  was  not 
entitled  to  insist  on  the  delivery  up  of  the  old  lease,  as  it  would  be  wrong 
to  put  it  out  of  the  power  of  the  lessee  to  take  advantage  of  it  should 
the  new  lease  prove  to  be  invalid  {ibid.). 

The  cases  where  the  acceptance  of  a  new  interest  by  the  lessee  effects 
a  surrender  by  operation  of  law  must  be  carefully  distinguished  from 
those  which,  in  some  respects,  resemble  them,  where  the  new  lease  is 
granted,  not  to  the  lessee,  but  to  a  third  party,  and  where  the  operation 
of  a  surrender  depends,  as  will  be  presently  seen,  entirely  on  the  change 
of  possession.  Where  there  is  no  change  of  possession,  the  acceptance  of 
a  new  interest,  unless  by  the  lessee  himself,  cannot  operate  as  a  surrender 
even  where  the  former  lease  has  been  given  up  to  be  cancelled  ( Wootley 
V.  Gregory,  1828,  2  Y.  &  J.  536 ;  31  R.  R  626 ;  Wallis  v.  Hands,  [1893] 
2  Ch.  75).  Nor  can  a  surrender  in  this  case  take  effect  unless  the  lessor, 
or  a  successor  in  title  of  the  lessor,  is  a  party  to  the  new  demise  {Easton 
v.  Penny,  supra).  So  where,  though  there  has  actually  been  no  fresh 
lease,  there  has  been  an  agreement  to  grant  one  between  the  lessor  and 
lessee — for  a  mere  agreement  by  the  lessor  with  a  third  party  to  grant 
a  new  lease  to  the  lessee  is  insufficient  {Porry  v.  Allen,  1590,  Cro.  Eliz. 
173;  78  E.  R.  430) — such  agreement,  if  enforceable  by  specific  per- 
formance, will  now  operate  as  a  surrender  of  the  first  lease  {Ex  'parte 
Vitale,  1882,  47  L.  T.  480),  Where,  however,  no  new  demise  is  intended 
by  the  parties  there  will  be  no  surrender,  as  where  a  landlord  merely 
agreed  by  parol  not  to  put  an  end  to  a  yearly  tenancy  which  was  to  last 
for  more  than  a  year — an  agreement  which  was,  therefore,  unenforce- 
able by  the  Statute  of  Frauds  {Sidebotham  v.  Holland,  [1895]  1  Q.  B.  378). 
Moreover,  an  agreement  between  a  tenant  and  his  landlord  by  which  the 
former  contracts  to  purchase  the  reversion  from  the  latter,  does  not  of 
itself  operate  as  a  surrender,  inasmuch  as  it  is  impliedly  conditional  on 
a  good  title  being  made  {Doe  v.  Stanion,  1836, 1  Mee.  &  W.  695 ;  46  R.  R. 
464;  Tarte  v.  Earby,  1846,  15  Mee.  &  W.  601;  Ellis  v.  Wright,  1897, 

76  L.  T.  522). 

The  second  class  of  surrenders  by  operation  of  law  are  founded,  as 
has  already  been  seen,  on  the  giving  up  of  possession.  Such  giving  up 
of  possession  must,  of  course,  be  with  the  consent  and  authority  of  the 
landlord;  and  a  mere  parol  agreement  to  determine  the  tenancy,  or  a 
parol  licence  to  quit  or  to  accept  another  person  in  tenancy,  will  not  be 
sufficient  {Thomson  v.  Wilson,  1818,  2  Stark.  379;  20  R  R  696;  Mollett 
V.  Brayne,  1809,  2  Camp.  103;  11  R  R.  676;  Taylor  v.  Chapmaii,  1795, 
Peake  Ad.  Ca.  19;  4  R.  R.  884).     What  amounts  to  such  consent  or 


SUKKENDER  735 

authority  on  the  part  of  the  landlord  is  in  each  case  a  question  of  fact, 
and  is  usually  inferred  from  some  act  or  acts  of  ownership  which 
may  have  been  exercised  by  him  subsequently  to  the  departure  of  the 
tenant  from  the  premises.  It  has,  however,  been  held  that  the  mere 
entry  of  the  landlord  upon  the  premises  for  the  purpose  of  executing 
repairs  to  them,  or  occupying  them,  whether  by  a  caretaker  or  by  work- 
men or  servants,  is  not,  where  such  occupation  is  not  for  the  purposes 
of  profit,  sufficient  for  a  surrender  by  operation  of  law  to  be  implied 
{Reeve  V.  Bird,  1834,  1  C.  M.  &  R.  31 ;  Bird  v.  Defonvielle,  1846,  2  Car.  & 
Kir.  415 ;  Pherd  v.  Popplewell,  1862,  12  C.  B.  N.  S.  334;  Oastler  v.  Hen- 
derson, 1877,  2  Q.  B.  D.  575 ;  Smith  v.  Blackmare,  1885,  1  T.  L.  E.  267). 
It  has  also  been  decided  that  mere  attempts  to  relet  the  premises,  as  by 
announcing  them  by  bills  to  be  vacant,  are  insufficient  (Bedpath  v.  Boherts, 
1800,  3  Esp.  225 ;  Oastler  v.  Henderson,  supra).  But,  of  course,  if  such 
attempts  should  be  successful  and  a  new  occupier  should  enter,  the  sur- 
render, as  will  be  presently  seen,  is  complete.  The  usual  manner  in 
which  the  landlord's  consent  is  sought  to  be  inferred  in  these  cases,  is 
by  his  acceptance  of  the  key  of  the  premises.  It  may  be  stated,  how- 
ever, as  a  general  rule,  that  for  a  surrender  by  operation  of  law  to  result 
from  this  act,  it  is  necessary  that  such  acceptance  should  have  taken 
place  with  the  intention  on  both  sides  of  determining  the  tenancy,  the 
key  being  then  looked  upon  as  the  symbol  of  possession  {Oastler  v. 
Henderson  and  Smith  v.  Blackmore,  supra ;   Whitehead  v.  Clifford,  1814, 

5  Taun.  518 ;  15  R.  R.  579 ;  Grimman  v.  Legge,  1828,  8  Barn.  &  Cress. 
324;  32  R.  R.  398;  PhenA  v.  Popplewell,  1862,  12  C.  B.  N.  S.  334).  It 
has  even  been  decided  that  an  express  repudiation  on  the  part  of  the 
landlord  of  his  intention  to  determine  the  tenancy  does  not  in  itself 
prevent  the  implication  of  a  surrender  where  the  accompanying  cir- 
cumstances show  that  that  inference  ought  to  be  drawn  {Smith  v. 
Boherts,  1892,  9  T.  L.  R.  77).  In  such  cases  it  is  for  the  Court  to  say 
whether  evidence  of  acceptance  of  the  key  has  been  produced  from 
which  the  inference  of  a  surrender  could  be  made  {Cannan  v.  Hartley, 
1850,  9  C.  B.  634;  82  R.  R.  478),  while  the  question  whether  the 
inference  should  be  drawn  or  not  is  one  of  fact  for  the  jury.  The 
key  may,  of  course,  be  delivered  or  accepted  by  agents  on  behalf  of 
the  landlord  and  tenant  respectively,  provided  such  agents  are  duly 
authorised  {Cannan  v.  Hartley,  supra  ;  Dodd  v.  Acklom,  1843,  6  Man. 

6  G.  672 ;  64  R.  R.  838). 

The  payment  and  acceptance  of  rent  different  from  that  fixed  by  a 
lease,  whether  such  rent  be  more  or  less  than  the  former,  furnishes 
evidence  from  which  a  surrender  of  the  former  lease  may  be  implied 
{Hodges  v.  Lawi-ance,  1854,  18  J.  P.  347;  Ex  parte  Vitale,  1882,  47  L.  T. 
480) ;  but  as  it  does  not  necessarily  imply  a  new  tenancy,  it  will  not 
of  necessity  amount  to  a  surrender  {Donellan  v.  Bead,  1832,  3  Barn.  & 
Adol.  889 ;  37  R.  R.  588 ;  Doe  v.  GeeUe,  1844,  5  Q.  B.  841 ;  64  R.  R. 
664  ;  Crowley  v.  Vitty,  1852,  7  Ex.  Rep.  319 ;  86  R.  R.  664).  Similarly, 
where  a  diminution  of  the  agreed  rent  is  accompanied  by  the  giving  up 
on  the  part  of  the  tenant  of  a  portion  of  the  premises  demised  to  him,  a 
surrender  by  operation  of  law  may  as  an  inference  of  fact  be  implied ; 
for  this  is  evidence  of  the  creation  of  a  new  tenancy.  This  evidence, 
however,  may  be  rebutted,  and  will  be  rebutted,  where  the  change  in  the 
extent  of  the  demise  or  the  amount  of  the  rent  is  unsubstantial  {Holme 
v.  Brunskill,  1877,  3  Q.  B.  D.  495 ;  Jones  v.  BridgTnan,  1878,  39  L.  T. 
500 ;  Baynton  v.  Morgan,  1888,  22  Q.  B.  D.  74). 


736  SURRENDER 

It  has  already  been  mentioned  that  where  upon  the  departure  of  a 
tenant  a  reletting  of  the  premises  to  another  tenant  takes  place,  a  sur- 
render of  the  former  tenancy  is  implied  by  operation  of  law;  though 
the  landlord  may  reserve  his  rights  against  the  tenant  by  force  of 
express  stipulation  {Bauson  v.  Zamb,  1853,  3  Car.  &  Kir.  269).  This  is 
founded  upon  the  same  principle  as  in  the  foregoing  cases,  namely,  that 
unless  the  original  term  were  determined  no  power  to  create  a  new 
tenancy  would  exist  {M'Donnell  v.  Pope,  1852,  9  Hare,  705).  For  a 
surrender  to  operate  in  these  cases  the  entry  of  a  new  tenant  must  have 
taken  place  with  the  consent  of  the  former,  whether  express  or  implied 
{Walker  v.  Eichardson,  1837,  2  Mee.  &  W.  882  ;  46  R.  R.  782 ;  Damson 
V.  Gent,  1857,  1  H.  &  N.  744),  and  also,  of  course,  with  that  of  the 
landlord.  The  latter's  consent  however,  will  be  sufficient,  though  given 
only  at  a  time  subsequent  to  the  entry  {Thomas  v.  Cook,  1818,  2  Barn.  & 
Aid,  119;  20  R.  R.  374),  but  if  obtained  from  him  by  the  tenant  by  a 
fraudulent  concealment  of  material  facts,  the  surrender  may  be  vitiated 
and  the  tenant's  liabilities  therefore  held  in  such  case  to  continue  {Bruce 
V.  Ruler,  1828,  2  Man.  &  R.  3;  32  R.  R.  700).  If  there  be  more  than 
one  lessor  the  consent  of  all  will  be  required  {Turner  v.  Hardey,  1842, 
9  Mee.  &  W.  770 ;  60  R.  R.  879),  as  will  also  that  of  any  person,  like  a 
mortgagee,  in  whom  the  reversion  at  the  time  was  vested  {Cadle  v.  Moody, 
1861,  30  L.  J.  Ex.  385).  Thus  a  reletting  by  the  landlord  on  the  tenant's 
account  cannot,  where  the  latter  has  notice  to  that  effect,  operate  as  a 
surrender  ( Walls  v.  Atcheson,  1826,  3  Bing.  462 ;  28  R.  R.  657).  The 
question  of  consent  is,  of  course,  to  be  decided  as  a  question  of  fact 
{Graham  v.  Whichelo,  1832,  1  C.  &  M.  188;  38  R.  R.  605),  and  the 
inference  that  consent  has  been  given  may  be  drawn  from  the  circum- 
stance that  receipts  for  rent  have  been  given  in  the  name  of  the  landlord 
{Copeland  v.  Watts,  1815,  1  Stark.  95  ;  Woodcock  v.  Nuth,  1832,  8  Bing. 
170;  Boe  v.  Wood,  1845,  14  Mee.  &  W.  682;  69  R.  R.  781;  Laurance 
V.  Faux,  1861,  2  F.  &  F.  435).  The  possession  must  in  all  these  cases  be 
actually  transferred  for  a  surrender  to  operate  {Wallis  v.  Hands,  [1893] 
2  Ch.  75) ;  but  the  nature  of  the  instrument  by  which  the  reletting  takes 
place,  or  the  fact  of  its  being  created  at  a  time  subsequent  to  the  posses- 
sion being  given  up,  or  the  circumstance  that  the  mode  of  entry  was 
originally  under  the  old  tenant  and  not  directly  under  the  landlord,  or 
the  fact  that  one  or  more  of  the  lessees  are  common  to  the  two  demises, 
is  immaterial  (see  Nickells  v.  Atherstone,  1847,  10  Q.  B.  944;  74  R.  R. 
556 ;  Hamerton  v.  Stead,  1824,  3  Barn.  &  Cress.  478  ;  27  R.  R.  407 ;  Stone 
V.  Whiting,  1817,  2  Stark.  235 ;  19  R.  R.  710 ;  Thomas  v.  Cook,  supra). 

A  few  observations  are  appended  as  to  some  of  the  respective  rights 
of  landlord  and  tenant  resulting  from  the  operation  of  surrender.  The 
estate  created  by  the  lease  having,  according  to  our  definition,  been 
"  yielded  up,"  the  rights  and  liabilities  created  thereby  are  determined. 
Thus  no  rent  falling  subsequently  due  can  be  recovered  either  by  action 
or  by  distress,  for  it  becomes  extinguished.  Hence,  where  a  surrender 
takes  place  between  two  quarter  days,  the  rent  for  the  portion  of  time 
during  which  the  premises  are  actually  enjoyed  is  at  common  law 
altogether  lost  {Grimman  v.  Legge,  1828,  8  Barn.  &  Cress.  324 ;  32  R.  R. 
398 ;  Slack  v.  Sharpe,  1838,  8  Ad.  &  E.  336);  though,  by  virtue  of  the 
Apportionment  Act,  33  &  34  Vict.  c.  35,  rent  pro  raid  can  now  be 
recovered  for  that  time.  Apart  from  statute,  too,  on  surrender  of  a 
portion  of  the  lands  comprised  in  a  demise  an  apportionment  of  rent 
is  (and  always  was)  made ;  for  apportionment  in  respect  of  estate  (as 


SUEKENDER  737 

distinguished  from  time)  is  a  doctrine  recognised  by  the  common  law 
(Co.  Litt.  148a ;  see  Appoktionment).  But  surrender,  of  course,  leaves 
untouched  any  rights  or  liabilities  which  have  accrued  before  the  date 
of  its  taking  place.  Thus  the  landlord  can,  after  a  surrender,  still  sue 
for  rent  previously  due  {A.-G.  v.  Cox,  1850,  3  H.  L.  240;  88  R.  E.  69; 
Shaw  V.  Lonias,  1888,  59  L.  T.  477),  and  can  enforce  against  the  tenant 
his  other  contractual  obligations. 

Upon  the  three  principal  matters  of  which  the  tenant  is  entitled  to 
the  benefit  at  the  end  of  his  term,  namely,  fixtures,  emblements,  and 
tenant-right,  the  act  of  surrender  may  have  an  important  bearing.  With 
regard  to  fixtures,  the  tenant,  in  deference  to  established  rule,  will  forfeit 
his  right  to  remove  them  unless  he  exercise  it  at  or  before  the  time  of 
the  surrender  (see  Ex  parte  Brook,  1878,  10  Ch.  D.  100,  per  Thesiger, 
L.J. ;  see  Fixtukes).  As  for  emblements,  surrender  being  an  act  to 
which  the  lessee  is  necessarily  a  consenting  party,  the  right  to  them  will 
be  thereby  lost  altogether  (Com.  Dig.,  "Biens"  (G.  2);  see  Growing- 
Crops).  And  in  the  not  uncommon  case  when  the  lessee's  tenant-right 
is  made  to  depend  upon  the  performance  by  him  of  the  covenants  of  the 
lease,  a  surrender  without  more  will  prevent  him  from  enjoying  its 
benefit  (JSngland  v.  Shearhtm,  1884,  52  L.  T.  22).  Similarly  where,  as- 
often  happens,  a  certain  right  is  expressed  in  a  lease  to  enure  to  the 
lessee  at,  or  at  a  stipulated  time  after,  the  "  expiration  or  other  sooner 
determination  "  of  the  lease,  the  right  is  lost  upon  the  happening  of  a 
surrender,  because  all  the  provisions  of  the  lease  are  thereby  put  an  end 
to  {Ex  parte  Glegg,  1881,  19  Ch.  D.  1 ;  Ex  parte  Dyke,  1882,  22  Ch.  D. 
410).  So  a  right  of  forfeiture  reserved  to  the  lessor  upon  the  commission 
of  a  breach  of  covenant  would  appear  incapable  of  being  enforced  after 
a  surrender,  rather  on  this  ground  than  on  the  ground  on  which  it  has 
been  put  {per  Mellish,  L.J.,  Great  Western  Rly.  Co.  v.  Smith,  1876,  2  Ch.  D., 
at  p.  253)  of  waiver  of  the  forfeiture,  seeing  that  waiver  is  dependent 
upon  the  lessor's  knowledge  of  the  breach  of  covenant.  Where,  too,  a 
statute  confers  some  right  of  procedure  upon  the  landlord  in  the  event 
of  a  tenancy  coming  to  an  end  by  "  expiration,"  e.g.  the  County  Courts 
Act,  1888,  51  «&  52  Vict.  c.  43,  s.  138,  it  will  not  apply  where  the 
tenancy  comes  to  an  end  by  surrender  (see  Doe  v.  Roe,  1831,  2  Barn.  & 
Adol.  922).  And  the  same  thing  will  no  doubt  hold  in  the  case  of 
rules  of  Court  (see  E.  S.  C,  1883,  Order  3,  r.  6  (F.)). 

It  would  seem  only  right  that  third  parties,  who  are  strangers  to  a 
surrender,  and  who  have  no  control  over  the  persons  privy  thereto,  should 
not  be  affected  in  those  cases  where  before  a  lease  is  surrendered  they 
have  obtained  some  interest  under  it  (Co.  Litt.  3386;  Doe  v.  Pyke,  1816, 
5  M.  &  S.  146 ;  17  E.  E.  296).  Thus,  for  example,  a  person  who  has 
acquired  an  interest  in  a  tenant's  fixtures  by  purchase  or  mortgage  will 
preserve  such  interest  in  spite  of  a  surrender  by  the  tenant,  and  will  have 
a  reasonable  time  given  to  him  for  the  purpose  of  exercising  his  rights 
of  removal ;  the  tenant  himself,  as  just  stated,  having  no  such  privilege 
{London  and  Westminster  Loan  Co.  v.  Drake,  1859,  6  C.  B.  N.  S.  798 ;  Saint 
v.  Pilley,  1875,  L.  E.  10  Ex.  137 ;  Moss  v.  James,  1878,  38  L.  T.  595). 
Similarly,  the  surrender  of  a  lease  does  not  put  an  end  to  an  underlease, 
whether  the  underlessee  has  notice  of  the  surrender  or  not,  and  whether 
the  lease  might  have  been  forfeited  or  not  at  the  time  the  surrender  is 
made  {Pleasant  v.  Benson,  1811,  14  East,  234;  12  E.  E.  507;  MelLor 
V.  Watkins,  1874,  L.  E.  9  Q.  B.  400 ;  Great  Western  Ely.  Co.  v.  Smith,  1876, 
2  Ch.  D.  235). 

VOL.  XIII.  47 


738  SURROGATE 

By  the  Act  to  amend  the  law  of  real  property,  1845  (8  &  9  Vict, 
c.  106),  it  is  provided  (s.  9)  that  where  a  reversion  expectant  on  a  lease 
is  surrendered,  the  estate  which  confers  as  against  the  tenant  the  next 
vested  right  to  the  tenements  shall  be  deemed  the  reversion  for  the 
purpose  of  preserving  the  incidents  to  and  obligations  on  the  reversion. 
This  enactment  was  passed  in  order  to  remedy  the  previously  existing  law 
by  virtue  of  which  the  liability  of  an  under-tenant  came  to  an  end  by 
the  surrender  of  the  head  lease,  in  consequence  of  the  destruction  by  that 
act  of  the  immediate  reversion  (  Webb  v.  Jiussell,  1789,  3  T.  R.  393 ;  1 R.  R. 
725).  Where,  moreover,  the  surrender  of  a  lease  under  which  underleases 
have  been  granted  is  made  with  a  view  to  renewal,  it  is  provided  by 
statute  (4  Geo.  ii.  c.  28,  s.  6)  that  the  new  lease  shall,  without  a  surrender 
of  all  or  any  of  the  underleases,  be  as  good  and  valid  to  all  intents  and 
purposes  as  if  those  underleases  had  been  likewise  surrendered  at  or 
before  the  taking  of  the  new  lease.  The  effect  of  this  enactment  is  to 
place  the  party  to  whom  the  new  lease  is  granted  in  the  position  of  an 
assignee  of  the  reversion  with  regard  to  the  underleases  (see  Coiisins 
V.  Phillips,  1865,  3  H.  &  C,  892).  But  it  does  not  enable  the  head 
landlord,  during  the  currency  of  the  renewed  term,  to  take  proceedings  in 
ejectment  against  an  underlessee  who  wrongfully  holds  over  (Ecclesiastical 
Commissioners  v.  Treemer,  [1893]  1  Ch.  166). 

Surrogate. — An  ecclesiastical  judge  may  appoint  a  duly 
qualified  deputy,  called  a  surrogate,  to  act  for  him.  Canon  128  of 
1603  gives  the  qualifications  for  the  office  of  surrogate  as  follows : — 
"  Either  a  grave  minister  and  a  graduate,  or  a  licensed  public  preacher, 
and  a  beneficed  man  near  the  place  where  the  Courts  are  kept,  or  a 
Master  of  Arts  at  least,  who  hath  some  skill  in  the  civil  and 
ecclesiastical  law,  and  is  a  favourer  of  true  religion,  and  a  man  of 
modest  and  honest  conversation."  The  appointment  of  a  surrogate 
must  conform  strictly  to  all  the  regulations  in  the  Canons  of  1603 
{e.g.  those  in  Canon  123),  otherwise  the  appointment  will  be  a  nullity, 
and  all  acts  done  by  the  appointee  will  be  invalid  (B.  v.  Verelst,  1813, 
3  Camp.  432  ;  14  R.  R.  775).  The  authority  of  a  surrogate  cannot 
exceed  that  of  his  principal  (Balfour  v.  Carpenter,  1810,  1  Phillim.  204). 
By  the  Marriage  Act,  1823,  4  Geo.  iv.  c.  76,  s.  18,  no  surrogate  there- 
after to  be  deputed  by  any  ecclesiastical  judge  who  hath  power  to  grant 
licences  shall  grant  any  such  licence  until  he  hath  taken  an  oath  faith- 
fully to  execute  his  office  according  to  law  to  the  best  of  his  knowledge, 
and  hath  given  security  by  his  bond  in  the  sum  of  £100  to  the  bishop 
of  the  diocese,  for  the  due  and  faithful  execution  of  his  said  office. 
See  Licence  (Marriage).  Under  the  Court  of  Probate  Act,  1857, 
20  &  21  Vict.  c.  77,  s.  27,  a  surrogate  (theretofore  appointed)  had 
power  to  administer  oaths  in  probate  matters,  but  such  power  was 
abrogated  by  the  Commissioners  for  Oaths  Act,  1889,  52  Vict.  c.  10, 
s.  12,  and  schedule. 

Survey. — See  Ordnance  Survey. 

Survey,  Courts  of. — These  Courts  were  created  by  the 
Merchant  Shipping  Act,  1876,  which  was  passed  for  the  purpose  of 
preventing  the  unseaworthiness  of  merchant  ships  and  their  improper 
loading  or  overloading.  This  Act  was  repealed  by  the  Merchant 
Shipping  Act,  1894,  57  &  58  Vict.  c.  60,  which  re-enacts  the  principal 


SURVEY,  COURTS  OF  739 

sections  of  the  former  Act,  and  subsequent  Acts  have  extended  them. 
The  functions  of  these  Courts  are  as  follows : — The  Board  of  Trade, 
if  they  have  reason  to  believe  that  a  British  ship  is  unsafe,  i.e.  by 
reason  of  the  defective  condition  of  her  hull,  equipments,  or  machinery, 
or  by  reason  of  undermanning,  or  by  reason  of  overloading  or  improper 
loading,  is  unfit  to  proceed  to  sea  without  danger  to  human  life,  may 
order  her  to  be  detained  either  provisionally  or  absolutely.  Power  is 
given  for  the  owner  or  master  of  the  ship  to  appeal  to  the  Court  of 
Survey  for  the  port  or  district  where  the  ship  is  detained  (s.  459). 
This  provision  also  applies  to  a  foreign  ship  at  a  port  in  the  United 
Kingdom,  on  notice  of  the  order  by  provisional  detention  being  served 
on  the  consular  officer  of  that  country,  and  the  consular  officer  being 
given  certain  powers  on  the  ship's  behalf  (M.  S.  A.,  1894,  s,  462 ;  1897, 
8.  1  (2) ;  1906,  ss.  2,  85,  Sched.  XL).  A  surveyor  of  ships  may  inspect 
any  ship,  British  or  foreign,  for  the  purpose  of  seeing  that  the  ship  is 
properly  provided  with  lights  and  the  means  of  making  fog-signals  in 
conformity  with  the  regulations  for  the  prevention  of  collisions  at  sea ; 
and  if  a  ship  be  not  so  provided,  the  ship  may  be  detained,  subject  to  an 
appeal  to  the  Court  of  Survey  (1894,  s.  420).  Whenever  the  Government 
of  any  foreign  country  is  willing  that  these  regulations  shall  apply  to 
the  ships  of  that  country  when  beyond  the  limits  of  British  jurisdiction, 
the  King,  by  Order  in  Council,  may  direct  that  these  regulations  shall 
apply  to  the  ships  of  the  foreign  country,  whether  within  British 
jurisdiction  or  not  (s.  424). 

An  appeal  is  also  given  to  the  Court  of  Survey  from  a  declaration  of 
survey  of  a  passenger  ship  surveyor  or  engineer  surveyor  (M.  S.  A.,  1894, 
8.  275,  and  1906,  s.  75),  and  it  has  been  held  that  this  section  excludes 
an  appeal  to  the  Court  of  Session  {Denny  v.  Board  of  Trade,  1880, 
7  Sess.  Cas.  4th  ed.  1019) ;  and  from  the  refusal  of  a  certificate  for 
clearance  of  an  emigrant  ship  (M.  S.  A.,  1894,  s.  318). 

In  difficult  cases  the  appeal  may  be  referred  to  scientific  referees 
by  the  Board  of  Trade,  such  persons  being  selected  by  agreement  between 
the  Board  of  Trade  and  the  appellant,  and  such  a  course  is  obligatory  if 
the  appellant  so  requires  and  gives  security  for  costs  (M.  S.  A.,  1894, 
s.  490). 

The  constitution  and  procedure  are  as  follows : — The  Court  of  Survey 
consists  of  a  judge  sitting  with  two  assessors.  The  judge  is  such  person 
as  may  be  summoned  for  the  case,  in  accordance  with  the  rules  made 
under  the  principal  Act,  out  of  a  list  (approved  for  the  port  or  district  by 
a  Secretary  of  State)  of  stipendiary  or  Metropolitan  police  magistrates, 
judges  of  County  Courts,  recorders,  or  wreck  commissioners.  The 
assessors  are  persons  of  nautical,  engineering,  or  other  special  skill, 
and  one  of  them  shall  be  appointed  by  the  Board  of  Trade,  and  the 
other  summoned,  in  accordance  with  the  Rules  of  Court,  by  the  registrar 
of  the  Court  out  of  a  list  of  persons  periodically  nominated  for  the 
purpose,  or,  if  there  be  no  such  list,  shall  be  appointed  by  the  judge 
{s.  487).  The  judge  and  the  assessors  survey  the  ship,  and  have  all  the 
powers  of  a  Board  of  Trade  inspector  under  this  Act,  or  may  appoint 
any  competent  person  to  survey  the  ship  and  report  to  them  thereon. 
The  Court  of  Survey  must  hear  every  case  in  open  Court  (s.  488).  The 
Board  of  Trade  and  the  appellant  are  the  parties  to  the  proceedings, 
but  any  other  person  may,  by  permission  of  the  judge,  be  made  a  party. 
There  is  power  to  give  notices  to  produce  and  to  admit,  and  the  wreck 
commissioner  may  issue  subpoenas  for  any  part  of  the  United  Kingdom. 


740  SURVEYOR 

Affidavits  may  be  sworn  in  the  United  Kingdom  before  any  Judge  of 
Survey ;  and  in  any  place  in  the  British  Dominions  out  of  the  United 
Kingdom,  before  any  judge ;  and  in  any  place  out  of  the  British 
Dominions,  before  a  British  consul.  As  soon  as  possible  after  the 
Court  has  come  to  its  decision,  the  judge  shall  order  an  issue  for  the 
release  or  detention,  either  finally  or  on  condition,  of  the  vessel,  as 
the  case  may  be.  The  Court  also  may,  if  the  parties  consent  thereto 
in  writing,  decide  whether  costs,  or  costs  and  damages,  are  due ;  and  may 
assess  the  same  (M.  S.  A.,  1894,  ss.  489  and  745 ;  Rules  of  the  Court 
of  Survey,  1876 ;  Temperley,  Merch.  Shipp.  Acts,  2nd  ed.,  1907,  p.  731). 

Surveyor. — There  is  no  legislation  defining  or  regulating  the 
business  of  surveyor  in  its  ordinary  sense,  i.e.  a  person  who  professes 
skill  in  measuring  and  valuing  land  and  building  work  (Hudson  on 
Building,  1907  ed.,  i.  32),  although  there  is  a  question  whether  such 
persons  require  appraisers'  licences  under  46  Geo.  iii.  c.  43,  ss.  4,  7 ; 
8  &  9  Vict.  c.  76,  s.  1  (Palk  v.  Force,  1848,  12  Q.  B.  666;  see  Hudson, 
ibid.,  p.  37).  But  in  certain  cases  the  intervention  of  a  qualified  surveyor 
is  required  to  value  land  or  dilapidations,  e.g.  under  sec.  58  of  the 
Lands  Clauses  Act,  1845,  8  &  9  Vict.  c.  18,  and  under  the  Ecclesiastical 
Dilapidations  Acts  (34  &  35  Vict.  c.  43 ;  35  &  36  Vict.  c.  96). 

These  surveyors  have  all  the  rights  and  liabilities  of  persons  pro- 
fessing skill  so  as  to  recover  the  value  or  stipulated  price  of  their  services, 
and  to  indemnify  against  their  negligence  the  persons  who  employ  them 
(see  Rogers  v,  James,  1891,  56  J.  P.  277  (also  reported  more  fully  in 
Hudson,  ibid.,  vol.  ii.  p.  185) ;  Zelidvre  v.  Gould,  [1893]  1  Q.  B.  491). 

Surveyor  of  Highivays. — This  office,  originally  constituted  in  the 
reign  of  Mary,  has  been  altered  by  the  Highways  Act,  1835,  5  &  6 
Will.  IV.  c.  50,  and  by  the  recent  Acts  relating  to  Local  Government. 
The  powers  are  now  transferred  to  and  exercised  by  the  Urban  or  Rural 
District  Councils  (except  as  to  powers  relating  to  main  roads  which 
are  in  the  hands  of  the  County  Council)  and  in  London  by  the- 
Metropolitan  Borough  Councils.  (See  Glen's  Public  Health,  1906  ed., 
i.  57w.) 

Surveyor  of  County. — There  is  not  a  statutory  county  surveyor  in 
England  as  in  Ireland,  but  County  Councils  are  entitled  to  appoint,  and 
do  appoint,  such  officers. 

Surveyor,  District,  is  appointed — (1)  By  the  London  City  Council 
to  supervise  the  execution  of  the  London  Building  Acts.  "District, 
surveyors  are  persons  having  a  statutory  position  and  duty  cast  upon 
them — they  are  not  the  mere  servants  of  the  London  County  Council " 
(jper  Channell,  J.,  in  Westminster  Corporation  v.  Watson,  [1902]  2  K.  B.,  at 
p.  729).  For  the  duties  of  these  surveyors  see  Cohen's  London  Building- 
Acts,  1906  ed.,  p.  197 ;  and  Emden's  Building  Statutes,  1907  ed.,  pp.  528. 
et  seq.,  552  et  seq.,  566. 

By  the  London  Government  Act,  1899,  62  &  63  Vict.  c.  14,  s.  5,  some 
of  the  powers  of  the  County  Council  in  relation  to  district  surveyors 
have  been  transferred  to  the  new  Metropolitan  Borough  Councils  (see 
the  note  to  sec.  145  of  the  Act  of  1894  in  Cohen's  London  Building 
Acts,  1906  ed.,  p.  203).    See  London  County. 

(2)  By  urban  and  rural  district  councils  to  act  as  their  agents  in 
supervision  over  streets  and  buildings  or  as  to  drainage  (see  Lewis  v. 
Weston-super-Mare  Local  Board,  1888,  40  Ch.  D.  55 ;  and  Glen,  ihid.„ 
i.  324,  698). 


SWAZILAND  PKOTECTOEATE  741 

Surveyor  of  Taxes  is  appointed  and  paid  by  the  Treasury  (under 
43  &  45  Vict.  c.  19,  s.  17)  to  survey  and  inspect  the  duties  of  land  tax, 
income  tax,  house  tax,  and  to  do  all  duties  assigned  to  him  by  the 
statutes  on  these  subjects.  The  appointment  is  during  pleasure,  and  is 
vacated  on  any  misconduct  or  offence  entailing  penalties  (43  &  44  Vict, 
c.  19,  s.  18).  This  office  seems  to  have  originated  in  1541  under  33 
Hen.  VIII.  c.  39,  "  The  Byll  for  the  Establishment  of  the  Court  of  Sur- 
veyor." The  survey  of  revenue  has  now  been  transferred  from  the 
Court  of  Exchequer  to  the  Treasury,  and  the  Board  of  Customs  and 
Inland  Kevenue. 

Survivorship. — See  Death,  Proof  of.  Vol.  IV. p. 380;  Joint- 
Tenancy,  Vol.  VII.  p.  513 ;  Will,  Judicial  Glossary. 

Suspension. — A  temporary  stop  or  suspension  of  a  person's 
rights,  e.g.  an  official  may  be  suspended  or  deprived  of  the  right  to 
exercise  his  office  for  a  particular  time.  A  sentence  of  suspension  on 
a  clergyman  is  a  sentence  of  temporary  degradation  and  deprivation 
inflicted  for  offences  of  a  lighter  character.  A  decree  of  suspension 
regularly  pronounced  and  enforced  against  a  clergyman  operates  for  the 
time  of  its  endurance  in  the  same  manner  as  if  the  clergyman  were 
dead  or  absolutely  removed  from  his  benefice  (Bunter  v.  Cresswell,  1850, 
19  L.  J.  Q,  B.  357),  and  the  bishop  of  the  diocese  is  entitled  to  the 
profits,  subject  to  the  duty  of  providing  for  the  services  of  the  church 
{ibid. ;  In  re  Thaheham  Sequestration  Moneys,  1871,  L.  K.  12  Eq.  494). 
Various  other  rights  may  be  suspended  or  temporarily  extinguished, 
e.g.  the  eviction  by  a  landlord  of  his  tenant  from  a  part  of  the  premises 
creates  a  suspension  of  the  entire  rent  during  the  continuance  of  the 
eviction  (see  Morrison  v.  Chadvnck,  1849, 18  L.  J.  C.  P.  192) ;  so,  too,  an 
easement  is  suspended  as  loug  as  the  same  person  having  a  term  of  years 
in  the  land  a  qud,  and  a  fee-simple  in  the  land  in  qud,  is  in  possession  of 
both,  and  it  revives  on  the  cessation  of  the  unity  of  possession  {Thomas 
V.  Thomas,  1835,  2  C.  M.  &  R  34). 

SUS.  per  coll. — These  words,  abbreviations  of  suspendatur per 
collum,  were,  says  Blackstone  (4  Com.,  396),  in  the  days  when  Latin  was 
in  use  in  judicial  proceedings,  written  by  the  judge  against  the  name  of 
a  prisoner  in  the  calendar,  or  list  of  prisoners'  names,  whom  he  had 
sentenced  for  a  capital  felony. 

Suzerainty.— See  State. 

Swaziland   Protectorate. —^rm  an^  History.  —  The 

British  Protectorate  of  Swaziland  is  situated  on  the  south-east  corner  of 
the  Transvaal  (q.v.),  being  bounded  on  the  east  by  Natal  and  Portuguese 
East  Africa  (see  Portugal),  and  on  the  east  and  south  by  Natal  (q.v.), 
and  has  an  area  of  6536  square  miles,  or  not  quite  as  large  as  Wales. 

The  independence  of  Swaziland  was  expressly  provided  for  both  by 
the  Pretoria  (1881)  and  London  (1884)  Conventions  between  the  Trans- 
vaal {q.v.)  and  the  Imperial  Government,  but  owing  to  the  incapacity 
of  the  native  administration  and  the  large  number  of  white  men  in  the 
country  it  was  found  necessary,  by  a  Convention  of  1890  (Hertslet's 
State  Papers,  vol.  Ixxxii.  p.  1062),  and  a  Proclamation  (ibid.  p.  958)  to 
establish  a  provisional  joint  British,  Boer,  and  Swazi  form  of  adminis- 


742  SWEAEING 

tration.  Under  a  new  Convention  of  1893  {ibid.,  vol.  Ixxxv.  p.  680) 
Swaziland  became  a  protectorate  under  the  administration  of,  but 
without  incorporation  with,  the  South  African  Republic.  During 
the  Boer  War  Swaziland  affairs  were  suffered  to  lapse  into  confusion, 
and  in  August  1902  a  special  British  Commissioner  entered  the  territory 
and  organised  a  provisional  administration. 

By  Order  in  Council  of  June  25,  1903  (St.  E.  &  0.,  Eev.  1904,  vol.  v., 
"Foreign  Jurisdiction,"  p.  141),  authority  over  Swaziland  was  conferred 
on  the  Governor  of  the  Transvaal,  but  on  the  establishment  of  respon- 
sible government  in  that  colony  the  powers  as  to  Swaziland  were 
transferred  to  the  High  Commissioner  for  South  Africa  by  Order  in 
Council  of  December  1,  1906  (St.  E.  &  0.,  1906,  p.  891). 

Administration. — Under  the  Orders  in  Council  of  1903  and  1906 
the  High  Commissioner  for  South  Africa  administers  the  protectorate 
and  legislates  by  proclamation.  A  Commission  was  appointed  by  pro- 
clamation in  1904  to  delimit  the  boundaries  of  the  concessions  which 
gave  rights  over  land  and  minerals,  and  to  inquire  into  these  and  other 
concessions  granting  exemption  from  taxes  or  exclusive  rights  to  import 
arms,  to  trade,  and  to  manufacture.  The  power  to  expropriate  con- 
cessions conferring  exclusive  rights  is  vested  in  the  High  Commissioner. 

Laws  and  Courts  of  Law. — By  proclamation  the  laws  of  the  Trans- 
vaal (see  sub-heading  Laws  of  that  article)  have  been  extended  to 
Swaziland,  but  native  laws  and  customs  in  civil  matters,  so  far  as  they 
are  not  repugnant  to  justice  and  morality,  are  to  be  maintained.  A 
chief  Court  for  Swaziland  was  constituted  under  sec.  4  of  the  Organic 
Proclamation  of  1890  (see  above),  but  by  proclamation  of  the  High 
Commissioner  under  the  Orders  in  Council  of  1903  and  1906  a  "Special 
Court  of  Swaziland "  and  a  "  Court  of  the  Eesident  Commissioner  of 
Swaziland  "  were  constituted. 

Appeals  from  these  Courts  lie  under  an  Order  in  Council  of  August 
12,  1907  (St.  E.  k  0.,  1907,  p.  1227),  direct  to  His  Majesty  in  Council; 
previously  under  an  Order  (St.  E.  &  0.,  1906,  p.  948)  now  repealed  the 
appeal  went  through  the  Transvaal  Supreme  Court.  Criminal  jurisdic- 
tion is  now  vested  in  the  Eesident  Magistrate  alone.  Magistrates'  Courts 
have  been  established,  and  a  Circuit  Court  sits  periodically  for  civil  cases. 
In  all  civil  matters  between  natives  native  law  and  customs  prevail, 
and  native  chiefs  exercise  jurisdiction  in  these  matters :  there  is  a  final 
appeal  from  the  native  Court  to  the  Eesident  Magistrate. 

Lands. — Certain  lands  have  been  set  apart  and  demarcated  exclusively 
for  the  Swazi  natives.  The  remainder  of  the  lands  are,  under  Order  in 
Council  of  November  2,  1907  (St.  E.  &  0..  1907,  p.  180),  vested  in  the 
High  Commissioner  for  South  Africa. 

Application  of  Imperial  Acts. — For  the  purpose  of  the  inter-colonial 
backing  of  extradition  warrants  Swaziland  has  by  Order  in  Council  of 
June  1, 1907  (St.  E.  &  0.,  1907,  p.  179),  been  grouped  with  the  other  South 
African  protectorates  and  colonies. 

[See  Colonial  Office  List ;  Statesman's  Year-Book.'] 

Swearing'. — See  Blasphemy;  Cuesing. 

Sw^earing'  the  Peace. — See  Articles  of  the  Peace. 

SAVeden. — Area. — The  kingdom  of  Sweden,  forming  the  eastern 
portion   of  the  northern   Scandinavian   Peninsula,   covers  an  area   of 


SWEDEN  743 

172,876  square  miles,  being  nearly  half  as  large  again  as  the  adjoining 
kingdom  of  Norway  {q.v.),  or  the  United  Kingdom.  On  the  north-east, 
Sweden  adjoins  Poland  (see  Kussia). 

Earlier  History. — This  is  closely  connected  with  that  of  Norway, 
under  which  article  a  very  brief  outline  of  the  various  dynastic  and 
boundary  changes  is  given. 

Constitution. — The  Constitution  of  Sweden  dates  from  June  6,  1809, 
but  has  been  subsequently  amended,  and  the  Crown  has  by  the  Agree- 
ment of  October  26,  1905,  been  severed  from  that  of  Norway  {q.v.). 
Under  the  existing  Constitution  the  executive  authority  is  in  the  King, 
who  acts  under  the  advice  of  a  Council  of  State,  composed  of  10 
responsible  ministers.  The  King  has  the  right  to  declare  war  and 
make  peace  with  advice  of  the  Council  of  State ;  he  nominates  all  the 
higher  military  and  civil  officials,  concludes  treaties  with  foreign  Powers, 
and  is  empowered  to  preside  in  the  Supreme  Court  of  Justice.  In 
matters  of  political  administration  the  legislative  authority  is  vested 
in  the  King,  but  otherwise  in  the  Diet  and  the  King  together.  All 
laws  must  receive  the  King's  sanction.  The  Diet,  or  Parliament,  is 
composed  of  two  elected  chambers,  called  the  First  and  Second 
Chambers. 

The  First  Chamher  consists  of  150  members,  elected  by  ballot  for 
9  years  by  the  25  Landstings  or  provincial  representations  and  the 
municipal  corporations  of  the  towns  unrepresented  in  the  liandstings. 
Members  must  be  above  35  years  of  age,  possess  certain  property 
qualifications,  and  are  unpaid. 

The  Second  Chamher  consists  of  230  members,  elected  by  ballot  for 
3  years  by  all  Swedish  citizens  of  21  years  of  age,  and  possessed  of 
certain  property  qualifications,  or  paying  taxes  up  to  a  certain  amount. 
The  towns  return  80  members  and  the  country  districts  150,  and  in 
the  smaller  towns  and  country  districts  the  mode  of  election  may  be 
direct  or  indirect  in  accordance  with  the  wishes  of  the  majority  of  the 
citizens.  Members  must  be  25  years  of  age,  possess  the  same  qualifica- 
tions as  electors,  and  are  paid  a  salary  besides  receiving  travelling 
expenses. 

The  reform  of  the  franchise  has  now  been  decided  upon  by  both 
chambers,  who  have  passed  a  bill  establishing  universal  suffrage  for  the 
Second  Chamber,  a  lowering  of  the  property  qualification  for  elections 
to  the  First  Chamber  and  payment  of  its  members,  and  basing  elections 
on  the  proportional  representation  system,  thus  extending  the  franchise 
not  only  to  elections  to  the  Second  Chamber,  but  also,  although  indirectly, 
to  those  to  the  First  Chamber.  This  extension  of  the  franchise  carries  with 
it  a  fundamental  reform  of  the  franchise  for  the  elections  to  the  county 
councils  and  all  communal  representative  bodies  (see  Local  Government 
below).  According  to  the  Swedish  Constitution  no  fundamental  law  can  be 
altered  unless  it  is  agreed  to  by  two  separately  elected  Second  Chambers, 
that  is  to  say  a  general  election  must  interpose  before  the  reform  can  be 
carried  into  law,  and  the  present  Bill  cannot  therefore  come  into  law 
until  the  new  Second  Chamber  passes  it.  This  will  be  the  first  adoption 
of  proportional  representation  on  a  two-Chamber  system. 

Laws. — The  law  of  Sweden  dates  from  1736,  though  it  has  been 
much  modified  and  added  to.  A  Penal  Code  was  added  in  1864,  and 
a  military  Penal  Code  in  1881.  Limited  companies  are  regulated  by 
law  of  June  28,  1895.     [See  "  Colonial  Laws  and  Courts,"  1905.] 

Local  Government. — For  administrative  purposes  Sweden  is  divided 


744  SWEDEN 

into  24  Governments,  each  under  a  prefect  nominated  by  the  King  and 
assisted  by  Kronofogdar  or  bailiffs,  and  Lansman  or  sub-officers.  The 
town  of  Stockholm  has  a  separate  administration  under  a  Governor- 
General.  Under  the  Communal  Laws  of  March  21,  1862,  the  people 
are  empowered  to  regulate  their  own  local  affairs.  Each  rural  parish 
and  town  forms  a  commune  or  municipality,  in  which  all  who  pay  local 
taxes  are  voters,  forming  the  Communal  Assembly.  All  questions  of 
administration,  police,  and  economy  are  decided  by  the  Communal 
Assemblies  in  the  rural  parishes,  and  by  elected  councils  in  the  towns. 
There  is  a  Landsting,  or  county  council,  in  each  Government,  which 
administers  the  internal  affairs  of  the  Government,  meeting  annually 
and  presided  over  by  an  officer  appointed  by  the  King.  Members  of 
these  councils  are  elected  by  the  provincial  districts  and  towns,  the 
larger  towns,  viz.,  Stockholm,  Gefle,  Goteborg,  and  Malmo  Norrkoping, 
are  separately  administered  by  their  own  municipal  councils.  The  local 
government  franchise  has  recently  been  widely  extended  (see  under 
Constitution  above). 

Courts  of  Justice. — The  administration  of  justice  is  controlled  by  the 
Justice-Kansler,  or  Chancellor  of  Justice,  who  is  appointed  by  the  King 
and  acts  as  a  counsel  for  the  Crown,  and  by  the  Justitie-Ombudsman,  or 
Attorney-General,  who  is  appointed  by  the  Diet,  and  generally  super- 
vises all  the  Courts  of  law.  There  are  a  Supreme  Court  of  Judicature, 
3  High  Court  Districts,  and  211  District  Courts  or  Courts  of  first  instance. 
The  District  Courts  in  towns  are  presided  over  by  the  burgomaster  and 
his  assessors,  and  in  the  country  by  a  judge  and  12  jurors,  who  are 
peasant  proprietors,  and  whose  decision  only  prevails  against  that  of  the 
judge  when  they  unanimously  differ  from  him.  "  Trial  by  jury  "  only 
exists  in  cases  of  press  offences. 

Application  of  Imperial  Acts. — An  Act  of  1672  (25  Car.  ii.  c.  7, 
s.  8  ;  rep.  S.  L.  Kev.  Act,  1863)  is  of  interest  as  providing  for  free  trade 
between  the  United  Kingdom  and  Sweden,  Norway,  and  Denmark. 
Sweden  has  acceded  to  the  Berne  Copyright  Convention  (see  article 
Copyright,  Vol.  Ill,  p.  638),  and  to  the  Industrial  Property  Convention 
of  1883  (Hertslet's  State  Papers,  vol.  Ixxiv.  p.  44),  which  governs  Patents 
{q.v.),  trade  marks,  and  copyright  in  designs.  Anglo-Swedish  relations 
as  to  these  matters  are  regulated  by  Orders  in  Council  (St.  R  &  0.,  1904, 
p.  31 ;  St.  K.  &  0.,  Kev.  1904,  vol.  ix.,  "Patents,  etc.,"  p.  6).  Extra- 
dition iq.v.)  with  Sweden  is  under  Order  in  Council  regulated  by 
Treaty  of  June  26,  1873,  with  Sweden  and  Norway  {ibid.,  vol.  v., 
"Fugitive  Criminal,"  p.  251),  continued  in  force  as  to  Sweden  by 
Agreement  of  July  2,  1907  (St.  K.  &  0.,  1907,  p.  290),  which  also 
extended  the  list  of  extradition  crimes  under  the  1873  Treaty — the 
list  being  more  extensive'  than  in  the  case  of  Norway  {q.v.). 

As  to  ships  and  shipping,  provision  was  made  by  Order  in  Council 
of  August  18,  1852  (St.  E.  &  0.,  Kev.  1904,  vol.  viii.,  "Merchant 
Shipping,"  p.  86),  for  the  apprehension  and  carrying  back  to  their  ships 
of  seamen  deserting  from  Swedish  ships  in  any  part  of  His  Majesty's 
dominions ;  by  Order  in  Council  of  October  25,  1881  {ibid.,  p.  71),  it 
was  provided  that  unauthorised  persons  going  on  board  Swedish  ships 
before  discharge  of  the  seamen  should  be  punished ;  and  by  the  Agree- 
ment of  July  12,  1881  (Hertslet's  Treaties,  vol.  xv.  p.  364),  provision 
was  made  for  the  interchange  of  facilities  between  the  Imperial  Govern- 
ment and  Sweden  for  the  relief  of  distressed  seamen.  Sweden  has 
adopted  the  existing  British  rules  for  the  measurement  of  sailing  and 


SWIMMING  BATHS  745 

steamships'  tonnage,  and  it  is  accordingly  provided  by  Order  in  Council 
of  August  18,  1882  (St.  R  &  0.,  Eev.  1904,  vol.  viii.,  "Merchant 
Shipping,"  p.  18),  that  Swedish  ships  need  not  be  remeasured  in  any 
port  or  place  in  His  Majesty's  dominions,  but  that  their  certificates  of 
registry  shall  be  evidence  of  their  tonnage.  The  British  Regulations 
of  1896  for  preventing  collisions  at  sea  apply  to  Swedish  ships,  whether 
within  British  jurisdiction  or  not  {ibid.,  p.  268),  except  as  regards  lights 
on  fishing  boats,  with  regard  to  which  Article  10  of  the  British  Eules 
of  1884  apply  {ibid.,  p.  268). 

Treaties  with  Sweden  for  the  abolition  of  the  slave  trade  were 
carried  into  effect  by  7  &  8  Geo.  iv.  c.  54 ;  and  1  &  2  Vict.  c.  40,  which 
in  common  with  other  Acts  were  repealed  and  consolidated  by  the 
Slave  Trade  Act,  1873,  36  &  37  Vict.  c.  88.  Sweden  was  a  party  to  the 
Brussels  General  Act  for  the  suppression  of  the  trade  and  that  Act  was 
by  Order  in  Council  {ibid.,  vol,  xi.,  "  Slave  Trade,"  p.  1)  brought  within 
the  1873  Act.  An  International  Telegraph  Convention  (Hertslet's 
Treaties,  vol.  xiv.  p.  95)  was  held  at  St.  Petersburg,  July  10-22,  1875, 
and,  in  accordance  with  the  Imperial  Telegraph  Act,  regulations  (St. 
R.  &  0.,  1906,  pp.  735-763)  have  been  made,  which  extend,  in  the  case 
of  Sweden,  to  press  telegrams. 

[See  Statesman's  Year-Book  ;  Encyclopaedia  Britannica.'] 

Sweets. — This  term  is  used,  in  Acts  relating  to  excise  and 
intoxicants,  to  denote — (1)  sweets  or  made  wines,  i.e.  any  liquor  made 
from  fruit  and  sugar  (or  from  fruit  and  sugar  mixed  with  any  other 
material),  which  has  undergone  a  process  of  fermentation  in  its  manu- 
facture (52  &  53  Vict.  c.  42,  s.  28);  (2)  mead  and  metheglin. 

The  following  regulations  govern  the  sale  of  sweets  : — 

1.  It  is  necessary  to  have  an  excise  licence  to  entitle  any  person  to  sell 
sweets  by  retail,  ie.  in  quantities  less  than  two  gallons  or  twelve  reputed 
quarts  (11  &  12  Vict.  c.  121,  s.  9  ;  23  &  24  Vict.  c.  113,  s.  7  ;  35  &  36  Vict, 
c.  93,  s.  74).  The  licence  is  annual,  expiring  on  5th  July,  and  costs  25s. 
(43  &  44  Vict.  c.  20,  s.  41).  For  wholesale  purposes,  a  dealer's  licence  is 
necessary  (23  &  24  Vict.  c.  113,  s.  7  ;  35  &  36  Vict.  c.  94,  s.  1).  The 
licence,  whether  for  consumption  on  or  oflF  the  premises,  is  not  granted 
except  on  a  justice's  certificate ;  and  the  justices  have  a  discretion  to  grant 
or  refuse  it  (35  <fe  36  Vict.  c.  94,  ss.  68,  69,  74).  As  to  the  duties  on  such 
licences,  see  Excise,  Vol.  V.  p.  449, 

2.  The  sale  of  sweets  is  also  legal  under  refreshment-house  wine  licences 
(24  &  25  Vict.  c.  91,  s.  11  ;  26  &  27  Vict.  c.  33,  s.  18),  and  under  ordinary 
wine  licences  (38  &  39  Vict.  c.  23,  s.  9  ;  43  (fe  44  Vict.  c.  20,  s.  40),  and 
under  spirit  licences  (43  &  44  Vict.  c.  20,  s.  43  (2)). 

3.  Wholesale  dealers  in  sweets  must  have  either  a  special  excise  licence 
(23  &  24  Vict.  c.  113,  ss.  1,  6,  7)  or  a  licence  to  deal  in  or  retail  foreign 
wine  (38  &  39  Vict.  c.  23,  s.  9  ;  43  &  44  Vict.  c.  20,  s.  40).  They  are  not 
subject  to  the  Licensing  Acts  (35  &  36  Vict.  c.  94,  ss.  72,  77).  Under  the 
Spirits  Act,  1880,  the  manufacture  of  sweets  and  spirits  must  not  take  place 
on  the  same  premises  (43  &  44  Vict.  c.  24,  ss.  11,  88).  As  to  manufacturers' 
licences,  see  6  Edw.  vii.  c.  20,  s.  7.  See  Excise,  Vol.  V.  p.  467  ;  Licensing, 
Vol.  Vni,  p.  171 ;  Wine, 

As  to  history  of  legislation,  see  Highmore,  Excise  Laws,  ii.  55. 

SAA/imming*  Baths. — Local  authorities  are  empowered  under 
the  Baths  and  Washhouses  Acts  to  provide,  inter  alia,  swimming  baths. 
See  Baths  and  Washhouses. 


746  SWINE 

Swine. — See  Animals;  Public  Health. 

SAVitzerland. — Arm. — The  Eepublic  of  Switzerland  is  com- 
posed of  22  Cantons  and  covers  an  area  of  15,976  square  miles,  or  about 
half  the  size  of  Ireland. 

Earlier  History, — Switzerland  originally  formed  part  of  the  Holy 
Eoman  Empire,  but  in  1291  Uri,  Schwyz,  and  Lower  Unterwalden 
formed  themselves  into  a  defensive  League.  By  1353  the  League  con- 
sisted of  8  Cantons,  which  were  increased  to  13  in  1513.  In  1798  the 
Helvetic  Republic  was  formed  under  French  influence,  and  a  regular 
Constitution  established,  which  not  giving  satisfaction  to  the  Cantons 
was  abrogated  in  1803  by  Napoleon,  who  by  the  Act  of  Mediation 
increased  the  number  of  Cantons  to  19,  and  granted  a  new  Constitution. 
The  perpetual  neutrality  of  Switzerland  and  the  inviolability  of  Swiss 
territory  was  guaranteed  by  the  Powers  in  1815,  and  the  Congress  of 
Vienna  accepted  the  Federal  Pact  (Hertslet's  State  Papers,  vol.  ii.  p.  14), 
by  which  the  number  of  Cantons  was  increased  to  22.  The  Federal 
Pact  continued  in  force  until  September  12,  1848,  when  it  was  super- 
seded by  a  new  Constitution  {ihid.,  vols,  xlvii.  p.  1245,  Iviii.  p.  1292) 
which  endured  until  May  29,  1874,  when  the  present  Constitution  was 
promulgated. 

Constitution. — The  Swiss  Constitution  may  be  revised  either  by 
Federal  legislation,  with  compulsory  referendum  or  by  direct  vote  of  the 
people,  which  latter  form  may  be  pursued  on  the  demand  or  "  popular 
initiative"  of  50,000  voters  under  Article  121  of  the  Constitution, 
which  amendment  only  became  law  in  1891.  By  the  Constitution  of 
May  29,  1874,  as  modified  to  the  end  of  1897  {ihid.,  vol.  Ixxxix.  p. 
1120),  the  Federal  Government  is  supreme  in  matters  of  peace,  war, 
and  treaties ;  it  regulates  the  army,  the  postal  and  telegraph  services, 
w^eights  and  measures,  coinage,  and  the  issue  and  repayment  of  bank 
notes  ;  it  legislates  matters  of  civil  capacity,  bankruptcy,  copyright  and 
patents  ;  it  provides  for  the  general  revenue,  and  it  decides  concerning 
public  works.  The  monopoly  of  gunpowder  has  been  followed  by  a 
monopoly  of  the  manufacture  and  federal  control  over  the  alcohol 
supply ;  the  manufacture  of  gold  and  silver  wares,  and  matches  is  also 
under  federal  control,  and  all  the  railways,  save  the  St.  Gothard  line, 
which  will  follow  the  other  lines  next  year,  were  nationalised  and  placed 
under  federal  control  in  1903.  The  control  of  emigration  and  insurance 
as  well  as  the  regulation  of  labour  in  factories,  the  protection  of  game, 
and  regulation  of  religious  bodies  are  in  the  province  of  the  Federal 
Government.  The  Federal  Government  interferes  somewhat  largely 
with  local  administration.  A  Parliament  composed  of  2  Chambers — 
a  "  Standerath  "  or  State  Council,  and  "  Nationalrath "  or  National 
Council — wields  the  supreme  legislative  and  executive  powers. 

The  Standerath  consists  of  44  members,  2  for  each  Canton  elected  and 
paid  by  the  Cantons,  the  mode  of  election  and  length  of  membership 
varying  in  each  Canton. 

The  Nationalrath  consists  of  167  members,  chosen  directly  for  3 
years  by  all  citizens  of  21  years  of  age.  Representatives  of  the 
Nationalrath  are  paid,  and  anyone  is  eligible  as  a  member  provided 
that  he  is  not  a  clergyman.  One  member  represents  every  20,000 
inhabitants. 

The  Bundes-Versammlung  or  Federal  Assembly  consists  of  the 
united  Chambers,    and   represents    the    Supreme   Government  of  the 


SWITZERLAND  747 

Kepublic.  Laws  may  be  initiated  by  the  people  themselves,  and  they 
can  veto  laws  passed  by  the  Federal  Assembly.  On  a  petition  presented 
by  30,000  citizens  asking  for  the  amendment  or  reversion  of  a  law,  or 
on  the  same  demand  being  made  by  8  Cantons,  the  law  in  question  must 
be  submitted  to  the  people  as  a  whole,  who  vote  directly  on  the  matter. 

The  Bundesrath,  or  Federal  Council,  consists  of  7  members  elected 
for  3  years  by  the  Federal  Assembly,  and  to  it  is  deputed  the  chief 
executive  power.  All  citizens  entitled  to  vote  for  the  Nationalrath  are 
eligible  as  members  of  the  Bundesrath.  Members  of  the  Bundesrath 
must  devote  themselves  exclusively  to  their  duties,  and  cannot  engage 
in  any  business  or  hold  any  other  office.  The  Bundesrath  introduces 
legislative  measures  in  the  deliberative  Councils  of  the  Eepublic.  The 
President  of  the  Republic,  and  the  Vice-President  of  the  Bundesrath 
are  the  first  magistrates  of  the  Republic,  and  are  elected  annually  by 
the  Federal  Assembly,  being  ineligible  for  re-election  for  a  year. 

Local  Government. — Each  Canton  is  mistress  in  its  own  house,  so 
far  as  the  Federal  Constitution  has  not  limited  its  independence  and 
legislative  authority.  The  principle  of  absolute  sovereignty  of  the 
people  is  the  basis  of  the  government  of  each  Canton,  which  differs  in 
organisation  in  each  case.  In  the  larger  Cantons  there  is  a  body  called 
"  der  Grosse  Rath,"  elected  by  universal  suffrage,  vested  with  legislative 
and  administrative  powers,  but,  as  in  the  Federal  Assembly,  the  referen- 
dum figures  prominently  except  in  the  Canton  of  Freilrug,  and  in  several 
Cantons  the  popular  initiative  is  also  a  feature.  In  some  of  the  smaller 
Cantons  the  people  legislate,  and  choose  their  administrators  without 
having  recourse  to  any  parliamentary  constitution.  Each  Canton  is 
divided  into  districts,  composed  of  a  group  of  Communes,  and  each 
district  has  a  Prefect,  who  represents  the  Canton.  The  larger  Com- 
munes possess  an  Assembly,  which  legislates  for  purely  local  affairs, 
and  a  Council  vested  with  executive  powers,  consisting  of  a  president, 
syndic  or  maire,  and  at  least  4  other  members.  The  smaller  Communes 
only  possess  a  Council. 

Laws. — Drafts  of  Federal,  Civil,  and  Criminal  Codes  have  recently 
been  prepared,  and  are  shortly  likely  to  become  law.  Family  law,  the 
laws  of  property  and  of  inheritance  are  still  governed  by  Cantonal  laws, 
which  are  mainly  based  on  the  French  and  Austrian  Civil  Codes  and 
the  Code  of  Zurich.     The  laws  of  some  of  the  Cantons  are  uncodified. 

Courts  of  Law. — The  Federal  Tribunal,  or  "  Bundes-Gericht,"  con- 
sist of  14  members,  with  9  assistant  judges,  appointed  for  6  years  by 
the  Federal  Assembly.  The  President  and  Vice-President  are  appointed 
for  2  years.  It  has  original  and  final  jurisdiction  in  suits  between  the 
Confederation  and  a  Canton,  or  between  Cantons,  and  in  certain  other 
cases.  It  is  also  the  Court  of  Appeal  from  decisions  of  other  Federal 
authorities,  and  where  Cantonal  authorities  apply  Federal  laws.  All 
persons  accused  of  treason  or  offences  against  the  Confederation  come 
before  this  tribunal,  and  for  that  purpose  it  is  divided  into  the  Chamber 
of  Accusation,  the  Criminal  Chamber,  the  Federal  Penal  Courts,  and  the 
Court  of  Cassation.  Ordinary  Civil  and  Criminal  Courts  exist  in  each 
Canton.  In  more  than  half  of  the  Cantons  capital  punishment  has 
been  abolished. 

Application  of  Imperial  Acts. — Switzerland  was  a  party  to  the  Berne 
Copyright  Convention,  and  to  the  addititional  Act  of  Paris  of  1896  (see 
article  Copyright,  Vol.  III.  p.  638)  and  to  the  Industrial  Property  Con- 
vention of  1883  (Hertslet's  State  Papers,  vol.  Ixxiv.  p.  44),  as  to  Patents 


748  SYLLABUS 

{q.v.),  trade  marks,  and  copyright  in  designs.  Anglo-Swiss  relations  as 
to  these  matters  are  regulated  by  Orders  in  Council  (St.  K.  &  0.,  Rev. 
1904,  vol.  ii.,  "Copyright,"  pp.  1,  13;  ihid.,  vol.  ix.,  "Patents,  etc.,"  p.  5). 
Extradition  {q.v.)  with  Switzerland  is  regulated  by  the  Treaties  of 
November  26, 1880,  and  June  29, 1904  (*&*c?.,  vol.  v., "  Fugitive  Criminal," 
p.  255,  and  St.  K.  &  O.,  1905,  p.  132). 

[See  Statesman's  Year-Book;  H.  d.  Lloyd  and  J.  A.  Hobson,  The  Swiss 
Democracy  ;  Colonial  Laws  and  Courts.'] 

Syllabus. — A  list,  published  by  authority  of  the  Pope,  enume- 
rating the  errors  into  which  the  faithful  may  fall,  or  a  document  by 
which  the  Church  asserts  its  supremacy  anathematising  those  who  do 
not  submit  thereto,  and  who  persist  in  the  errors  specified  in  the 
Syllabus.  That  published  in  February  1870  gives  the  fullest  list  of 
errors. 

See  Encyclical  ;  Pope. 

Syndic. — An  agent  appointed  to  act  in  some  matter  on  behalf  of 
a  corporation.  An  example  of  the  use  of  the  term  will  be  found  in  In 
the  Goods  of  Darker,  1859,  29  L.  J.  P.  71,  where  it  appears  the  chapter- 
clerk  of  the  Dean  and  Chapter  of  Exeter  had  been  appointed  by  them 
under  seal  their  syndic  to  take  out  letters  of  administration  to  the 
deceased.  There  are  various  syndics  appointed  by  the  University  of 
Cambridge  to  act  in  specific  matters.  The  name  syndic  is  also  employed 
in  much  the  same  sense  in  some  foreign  countries,  and  in  France  it  is 
also  used  as  meaning  the  persons  appointed  by  the  Court  to  administer 
the  property  of  a  bankrupt. 

Syndicate. — The  office  or  jurisdiction  of  a  syndic  ;  a  council  or 
body  of  syndics,  and  in  this  sense  the  word  is  used  at  the  University  of 
Cambridge.  The  word  is  now,  however,  more  generally  employed  to 
denote  an  association  of  persons  who  combine  to  carry  out  some  special 
financial  or  industrial  project.  A  syndicate  is  frequently  formed  to 
purchase  some  undertaking  or  acquire  some  concession,  and  resell  the 
same  to  a  company  at  a  profit.  Sometimes  syndicates  are  formed  under 
agreements  which  merely  constitute  them  partnerships,  the  members 
therefore  being  liable  as  in  an  ordinary  partnership  ;  but  more  recently 
syndicates  have  not  infrequently  been  registered  under  the  Companies 
Acts,  and  do  not  differ  legally  from  any  other  registered  company ; 
but  the  usual  feature  of  such  associations  is  merely  to  acquire  some 
undertaking,  hold  it  temporarily,  and  resell  it  to  a  company  (see  Palmer, 
Company  Precedents,  9th  ed.,  pt.  i.  pp.  129-131,  where  numerous  examples 
are  given  of  the  purposes  for  which  syndicates  are  formed). 

Synod. — The  term  synod  is  synonymous  with  council.  Sj/nodus 
azctem  ex  Grceco  interpretatur  comitatus  vel  coitus.  Concilii  vero  nomen 
tractum  est  ex  more  Romano  (Dist.,  xv.  c.  1,  s.  7).  It  means,  according 
to  the  canonists,  an  assembly  of  prelates  and  doctors  to  settle  matters 
concerning  religion  and  the  discipline  of  the  Church.  Four  kinds  are 
distinguished — (1)  General  or  CEcumenic  and  Plenary  Councils,  when 
bishops  and  prelates  of  all  nations  meet  together ;  (2)  National  Councils, 
when  those  of  one  nation  only  come  together  (none  has  been  held  in 
England  since  1555) ;  (3)  Provincial  Councils  or  Convocations,  when  the 
metropolitan  and  bishops  of  the  province  meet ;  and  (4)  Diocesan  or 


TACKING  (AND  PEOTECTION  OF  LEGAL  ESTATE)    749 

Episcopal  Councils,  which  are  conferences  between  the  bishop  and 
his  clergy.  The  last  fell  into  desuetude  after  the  Act  of  Submis- 
sion, 25  Hen,  viii.  (1533),  c.  19,  but  have  recently  been  sought  to  be 
revived.  By  some  a  Chapter  is  looked  upon  as  a  species  of  synod. 
Our  Saxon  Kings  also  called  a  synod  or  mixed  council,  consisting  of 
ecclesiastics  and  the  nobility,  three  times  a  year  (Cowell ;  1  Black.  Com., 
279,  280). 

For  a  list  of  the  chief  general  councils,  see  Phillimore,  Ecd.  Laiv, 
2nd  ed.,  pp.  1525-1529.    As  to  the  provincial  councils,  see  Convocation. 


Tableau  Vivant.— See  Copyright,  Vol.  Ill  p.  631. 
Tacking  (and  Protection  of  Legal  Estate). 


TABLE  OF  CONTENTS. 


Tacking  as  Defined  in  Marsh  v.  Lee 

A  Branch  of  the  Law  of  Purchaser 
for  Value  without  Notice   . 

Policy  of  Doctrine  Questioned 

Doctrine  is  said  to  be  Founded  on 
the  Distinction  between  Legal 
and  Equitable  Jurisdiction  and 
Estates 

But  not  Affected  by  the  Judicature 
Acts 

Statutory  Alterations 

The  Money  to  be  Tacked  must  have 
been  Lent  without  Notice  . 

The  Leeal  Estate  may  be  Tacked 
though  Obtained  after  Notice  or 
Pendente  Lite       .... 

Advance  after  an  Act  of  Bank- 
ruptcy          

Tacking  Judgments 

A  Legal  Estate  Affected  with  a 
Trust  cannot  be  Tacked  as  against 
the  Trust 

(1)  If  the  Person  Claiming  to 

Tack  takes  it  with  Notice 
of  the  Trust ;  or     . 

(2)  (Probably)  if    the   Person 

taking  the  Estate  has  no 
Notice  of  the  Trusts,  but 
no  Consideration  is  given 
to  the  Trustee 

(3)  Conveyance  by  a  Mortgagor 

to  a  Puisne  Mortgagee 
without  Consideration 
comes  within  the  Quali- 
fication .... 


749 

750 
750 


750 

750 
750 

751 


751 

752 
752 


753 


754 


754 


754 


(4)  So  does  a  Conveyance  by  a 

Satisfied  Mortgagee 

(5)  Conveyance  by  an  Unsatis- 

fied Mortgagee  without 
Consideration  of  Part  of 
the  Mortgaged  Property 
does  not  come  within  the 
Qualification  . 

(6)  The  Qualification  only  ap- 

plies to  Exclude  Tacking 
as  against  the  Person  for 
whom  the  Legal  Estate 
is  held  on  Trust     . 

As  against  the  Heir,  Beneficial  De- 
visee, or  the  Executor  of  a  Solvent 
Mortgagor,  Money  may  be  Tacked 
which  is  not  a  Charge 

Except  as  aforesaid,  the  Person 
claiming  to  Tack  Money  must 
have  Advanced  it  on  the  Security 
of  the  Property,  and  must  have 
equal  Equity,  except  as  to  Time 

He  must  be  Entitled  to  both  Debts 
in  the  same  Rights 

In  the  Case  of  a  Mortgage  of  Shares, 
must  have  become  Shareholder 
in  Fact  or  subject  only  to  some 
Ministerial  Act  being  done  . 

Mortgage  to  Secure  further  Ad- 
vances          

Protection  of  Legal  Estate  Ob- 
tained contemporaneously  with 
Advance 

Who  are  Purchasers  ?      .        . 


754 


754 


755 


755 


755 


756 


756 
757 


758 
759 


Tacking  and  Protection  of  Legal  Estate. — The  case  generally  taken 
as  the  leading  authority  on  tacking  is  Marsh  v.  Lee,  1670,  2  Vent.  337; 
86  E.  K.  473;  2  L.  C.  Eq.,  1897  ed.,  p.  110,  in  which  it  was  resolved 
"  that  a  purchaser  or  mortgagee  coming  in  upon  valuable  consideration 
without  notice,  and  purchasing-in  a  precedent  incumbrance,  it  shall 
protect  his  estate  against  any  person  that  had  a  mortgage  subsequent 


750    TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE) 

to  the  first,  though  before  the  last  mortgage,  though  he  purchased-in 
the  incumbrance  after  he  had  notice  of  the  second  mortgage."  The 
resolution  is  applied  to  a  case  where  the  purchaser  got  the  legal  estate. 

This,  as  Lord  Westbury  points  out  in  Phillips  v.  Phillips,  1861, 
4  De  G.,  r.  &  J.  208 ;  45  E.  R.  1164,  is  merely  a  branch  of  the  doctrine 
of  the  defence  in  equity  of  "  purchaser  for  value  without  notice,"  "  which 
in  its  application  to  cases  where  the  purchaser  has  not  got  the  legal 
estate"  is  discussed  in  the  article  Purchaser  for  Value  without 
Notice,  Vol.  XII.  p.  141. 

"  Tacking  "  is  where  a  legal  estate  is  obtained  subsequently  to  a  pur- 
chase or  mortgage  of  an  equitable  interest,  and  the  object  is  to  squeeze 
out  an  intermediate  equitable  charge  or  estate;  and  this  is  the  most 
common  instance  in  which  a  claim  is  made  to  the  protection  by  the 
legal  estate.  The  principle,  however,  applies  with  still  greater  force  in 
the  case  where  the  legal  estate  is  obtained  contemporaneously  with  the 
payment  of  consideration,  which,  though  not  tacking,  is  treated  under  the 
same  head  in  this  article,  as  depending  on  the  possession  of  the  legal  estate. 

The  doctrine  when  applied  to  tacking — which  is,  in  fact,  ousting  a 
prior  purchaser  for  value  with  equal  equity — has  been  the  suhject  of  un- 
favourable comment  both  in  modern  and  old  cases ;  but  since  the  decision 
in  Marsh  v.  Lee  in  1670  it  has  always  been  treated  as  established,  subject 
to  certain  distinctions  as  to  the  circumstances  affecting  the  legal  estate 
which  involve  some  nicety.  See  Edmunds  v.  Povey,  1683,  1  Vern.  187 ; 
23  E.  R.  404 ;  Holt  v.  Mill,  1692,  2  Vern.  p.  279 ;  23  E.  R.  781 ;  and  per 
Lord  Blackburn  in  1881,  Jennings  v.  Jordan,  6  App.  Cas.  698,  where  he 
states,  p.  715,  that  "  notwithstanding,  as  it  seems  to  me,  unanswerable 
objections  to  the  rule,  now,  after  the  lapse  of  nearly  a  century  and  a  half 
more,  I  think  only  the  legislature  can  do  away  with  this  rule,"  and  refers 
to  TUley  v.  Davies,  1743,  2  Y.  &  C.  C.  399 ;  63  E.  R.  177 ;  60  R.  R.  218. 

Lord  Hardwicke,  L.C.,  in  Woi'tley  v.  Birkhead,  1754,  2  Ves.  571 ; 
28  E.  R.  364,  explained  that  the  doctrine  was  founded  on  the  [superior 
force  and  strength  allowed  by  Courts  of  Equity  to  a  legal  title  to 
estates.  A  creditor  cannot  tack  if  there  be  a  prior  legal  mortgage,  and  in 
all  cases  where  the  legal  estate  is  outstanding  the  several  incumbrances 
must  be  paid  according  to  their  priority  of  time  {Brace  v.  Duchess  of 
Marlborough,  1728,  2  P.  Wms.  491 ;  24  E.  R.  829)]. 

The  doctrines  of  tacking  and  protection  by  the  legal  estate  have  not 
been  altered  by,  but  have  been  recognised  as  subsisting  since  the  passing 
of  the  Judicature  Act  of  1873,  in  Ind  Coope  v.  Emmerson,  1887,  12  App. 
Cas.  300.  See  Taylor  v.  Russell,  [1892]  A.  C.  244,  a  decision  of  the 
House  of  Lords ;  the  judgment  of  Wright,  J.,  in  Powell  v.  London  and 
Provincial  Bank,  [1893]  1  Ch.  615 ;  of  Kay,  L.J.,  in  the  same  case,  on 
appeal,  [1893]  2  Ch.  555,  infra;  and  the  judgments  of  the  Court  of 
Appeal  in  Bailey  v.  Barnes,  [1894]  1  Ch.  25. 

Statutory  Alterations  of  the  Doctrine. — As  to  England  and  Ireland, 
sec.  7  of  the  Vendor  and  Purchaser  Act  of  1874  abolished  tacking  as 
from  the  commencement  of  the  Act,  7th  of  August  1874.  This  was  in 
force  in  England  between  the  7th  of  August  1874  and  1st  of  January 
1876,  when  it  was  repealed  [as  from  the  date  when  it  came  into  opera- 
tion except  as  to  anything  duly  done  thereunder  before  January  1, 
1876]  by  the  Land  Transfer  Act  of  1875. 

It  was  in  force  in  Ireland  between  the  7th  of  August  1874  and  1st 
of  January  1882,  when  it  was  repealed  [as  from  the  date  when  it  came 
into  operation]  by  the  Conveyancing  Act  of  1881  (s.  73). 


TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE)    751 

See  as  to  effect  of  it  in  England  while  in  force,  Robinson  v.  TrevoVy 
1883, 12  Q.  B.  D.  423,  see  p.  433. 

By  sec.  16  of  the  Yorkshire  Registries  Act,  1884,  47  &  48  Vict.  c.  54, 
lands  within  the  three  Ridings  [and  the  town  of  Kingston-on-Hull]  are 
now  excluded  from  the  doctrine  of  tacking.  [All  assurances  of  land 
within  these  limits  and  entitled  to  be  registered  under  the  Act  are  to 
have  priority  according  to  the  date  of  registration  thereof  and  not 
according  to  the  date  of  such  assurances  except  in  cases  of  actual  fraud 
{Battison  v.  Hohson,  [1896]  2  Ch.  403).] 

The  Money  to  he  Tacked  must  have  been  Lent  without  Notice. — The 
doctrine  of  tacking  is  stated  by  Sir  J.  Jekyll,  in  Brace  v.  Duchess  of 
Marlborough,  1728,  2  P.  Wms.  491 ;  24  E.  R.  829,  in  a  series  of  rules, 
some  of  which  relate  to  the  old  Statutes  Staple  and  Statutes  Merchant 
and  the  old  law  as  to  judgments.  The  first  and  sixth  rules  in  Brace  v. 
Duchess  of  Marlborough  make  together  that  in  Marsh  v.  Lee,  cited  at  the 
commencement  of  this  article. 

The  sixth  rule  laid  down  in  Marsh  v.  Lee,  as  stated  in  the  marginal 
note,  is  :  "  But  in  all  these  cases  there  must  not  be  notice  of  the  mesne 
incumbrance  when  the  money  is  lent." 

See  dXmper  Lord  Hardwicke  in  Willoughby  v.  WUloughby,  1787, 1 T.  R. 
763 ;  1  R.  R.  397 ;  and  per  Lord  Cottenham  in  La^ey  v.  Ingle,  1846,  2  Ph. 
419 ;  41  E.  R.  1002 ;  78  R.  R.  123. 

Though  this  is  thus  stated  as  a  separate  rule,  it  is  part  of  the  rule 
itself,  and  is  necessarily  implied  where  it  is  stated  that  the  doctrine  of 
tacking  is  a  branch  of  the  law  of  purchaser  for  value  without  notice  (see 
per  Lord  Westbury  in  Phillips  v.  Phillips,  1862,  4  De  G.,  F.  &  J.  pp.  216, 
217 ;  45  E.  R.  1166),  and  by  the  rule  that  the  person  claiming  to  tack 
must,  except  as  to  time,  have  an  equal  equity  with  the  person  against 
whom  the  tack  is  to  operate  {per  Cottenham,  L.C.,  in  Lacey  v.  Ingle,  1847, 
2  Ph.  419;  41  E.  R.  1002;  78  R.  R.  123;  per  Wood,  V.-C,  Booper  v. 
Harrison,  1855,  2  Kay  &  J.  p.  108  ;  69  E.  R.  713). 

The  Legal  Estate  Tnay  be  Tacked  though  taken  after  Notice  or  Pendente 
Lite. — The  rule  that  there  must  not  be  notice  of  the  incumbrance  to  be 
ousted  by  tacking,  only  applies  at  the  time  when  the  money  to  be  tacked 
is  lent ;  the  legal  estate  may  be  tacked  though  acquired  after  notice. 
This  was,  in  fact,  decided  in  Marsh  v.  Lee,  supra ;  and  see  Blackwood  v. 
London  Chartered  Bank  of  Australia,  1874,  L.  R.  5  P.  C.  92.  [The  mere 
fact  that  the  subsequent  incumbrancer  has  notice  of  the  prior  incum- 
brance when  he  gets  in  the  legal  estate  counts  for  nothing.]  "  It  is  the 
very  occasion  that  shows  the  necessity  for  it "  (per  Lord  Macnaghten  in 
Taylor  v.  Bussell,  [1892]  A.  C.  p.  259). 

And  the  cases  establish  that  the  legal  estate  may  be  acquired  not 
only  after  notice  of  the  claim  of  the  person  against  whom  tacking  is  to 
operate,  but  also  pendente  lite. 

It  is  laid  down  in  the  first  rule  in  Brace  v.  Duchess  of  Marlborough, 
2  P.  Wms.  491 ;  24  E.  R.  829,  that  "  tacking  is  allowed  though  a  third 
mortgagee  buys  in  the  first  mortgage  pending  a  bill  brought  by  the  second 
mortgagee  to  redeem  the  first."  This  was  established  in  the  leading  case 
of  Marsh  v.  Lee,  supra  (see  also  Bates  v.  Johnson,  1859,  John.  304; 
70  E.  R.  439 ;  Robinson  v.  Davison,  1778,  1  Bro.  C.  C.  63  ;  28  E.  R. 
956  ;  Blackwood  v.  London  Chartered  Bank  of  Australia,  1874,  L.  R. 
5  P.  C.  92). 

These  were  cases  pendente  lite,  but  the  legal  estate  may  be  got  in 
after  a  decree  in  an  action  to  which  neither  the  holder  of  the  legal 


752    TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE) 

estate  nor  the  person  taking  a  transfer  were  parties  (see  Bailey  v.  Barries, 
[1894]  1  Ch.  25). 

Not  after  a  Decree  to  which  Claimant  was  Party. — The  puisne  mort- 
gagee is  not  allowed  to  tack  such  money  to  an  estate  got  in  after  a  decree 
settling  priorities  to  which  the  puisne  mortgagee  is  a  party  (see  per  Lord 
Hardwicke  in  Wortley  v.  BirJchead,  1754,  2  Ves.  574;  28  E.  R.  364, 
referring  to  Bristol  v.  Hwiigerford,  1705,  2  Vern.  525 ;  23  E.  R.  938). 
[Up  to  the  time  of  the  decree  you  may  struggle  for  the  tabula  in  Tiaufragio 
(per  Lord  Eldon  in  :Ex  parte  Knott,  1806,  11  Ves.  610 ;  32  E.  R.  1225  ; 
8  R.  R.  254,  referring  to  Belchier  v.  Renforth,  1764,  5  Bro.  P.  C.  292 ; 
2  E.  R.  686).] 

Advance  after  Act  of  Bankruptcy. — Under  the  Bankruptcy  Acts  of 
1869,  ss.  94  and  95,  and  of  1883,  s.  49,  hond-fde  transactions  without 
notice  after  an  act  of  bankruptcy  are  protected.  It  would  seem  to 
follow,  that  if  money  was  advanced  on  an  equitable  mortgage  without 
notice  of  an  act  of  bankruptcy,  the  mortgage  would  be  effectual  as  against 
the  trustee  in  bankruptcy  apart  from  any  question  of  tacking,  although 
the  mortgagee  did  not  acquire  the  legal  estate  (see  Ex  parte  Schulte,  1874, 
L.  R.  9  Ch.  409),  but  that  the  onus  of  proving  no  notice  would  lie  on  the 
mortgagee  {ibid. ;  see  also  Ex  parte  Evans,  1879,  11  Ch.  D.  691,  where 
the  mortgagee  had  the  legal  estate,  but  this  was  not  referred  to  in 
the  judgments). 

Talking  Judgments. — The  second,  third,  fourth,  and  fifth  rules  laid 
down  by  Sir  T.  Plumer  in  Brace  v.  Duchess  of  Marlborough,  supi-a,  relate 
to  tacking  judgments  or  statutes  staple  or  statutes  merchant;  but  the 
Acts  relating  to  these  statutes  have  been  repealed,  and  the  rules  as 
to  tacking  judgments  are  of  less  importance  than  they  formerly  were. 
There  are,  however,,  some  points  to  be  noticed  with  respect  to  them. 
But  it  must  be  borne  in  mind,  in  considering  the  rules,  that  nothing  can 
be  tacked  which  is  not  a  charge  on  the  property,  and  that  under  27 
&  28  Vict.  c.  112,  s.  1,  a  judgment  is  not  a  charge  on  land  until  such 
land  has  been  delivered  in  execution  by  virtue  of  a  writ  of  elegit  or 
"  other  lawful  authority,"  and  that  by  the  Land  Charges  Registration 
and  Searches  Act,  1888,  it  is  further  enacted  that  the  judgment  shall 
not  be  a  charge  until  the  writ  of  execution  is  registered. 

The  words  "  in  execution  by  virtue  of  a  writ  of  elegit  or  other  lawful 
authority,"  have  been  held  to  include,  in  the  case  of  land,  equitable 
execution  by  the  appointment  of  a  receiver  (see  Seton,  5th  ed.,  p.  1716 ; 
6th  ed.,  2073 ;  Anglo-Italian  Bank  v.  Davies,  1878,  9  Ch.  D.  275). 

There  is  a  difference,  so  far  as  regards  the  plea  of  purchaser  for  value 
without  notice,  between  the  legal  interest  acquired  under  a  judgment, 
and  that  under  an  express  charge.  A  judgment  is  only  operative  on  the 
interest  of  the  debtor.  And  it  was  established  in  Whitworth  v.  Gaugain, 
1846,  1  Ph.  728  ;  41  E.  R.  809  ;  65  R.  R.  488,  that  notwithstanding  that 
the  Statute  1  &  2  Vict.  c.  110,  enacted  that  a  judgment  should  have  the 
effect  of  a  charge  by  the  debtor,  a  prior  equitable  mortgagee  retains  his 
right  in  equity  to  enforce  his  security  against  the  title  of  a  creditor 
under  a  judgment,  although  the  creditor  may  have  acquired  the  legal 
seisin  and  possession  of  the  land  under  an  elegit  without  notice. 

Prior  Judgment  Creditor  having  Subsequent  Mortgages. — "Where  a 
judgment  creditor,  when  his  money  was  lent  or  debt  arose,  had  no 
mortgage  of  the  land,  it  was  held  that  he  was  to  be  treated  as  not 
lending  on  the  security  of  the  land ;  and  on  that  ground  it  was  laid 
down  under  the  law  before  1  &  2  Vict.  c.  110,  that  he  could  not  tack  a 


TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE)    753 

subsequent  mortgage  to  his  judgment ;  this  is  the  second  rule  in  Brace 
V.  Duchess  of  Marlborough,  1728,  2  P.  Wms.  491 ;  24  E.  R  829 ;  see  Ux 
parte  Knott,  1806,  11  Ves.  617 ;  32  E.  R.  1225  ;  8  R.  E.  254. 

And  though  Mr.  Fisher  in  his  work  on  mortgages  (see  ed.  iv.  1884, 
pp.  566,  567)  suggests  that  this  may  have  been  altered  by  1  &  2  Vict. 
c.  110,  which  was  expressed  to  give  the  judgment  creditor  the  same 
remedies  as  he  would  have  if  the  debtor  had  agreed  to  charge,  there  is 
no  case  deciding  that  the  old  rule  has  been  altered ;  and  it  appears  to 
be  treated  as  subsisting  in  Whitworth  v.  Gaugain,  1846,  1  Ph.,  see  pp. 
733,  734 ;  41  E.  R.  809  ;  65  R.  R.  488  ;  and  in  1847  in  Lacey  v.  Ingle, 
2  Ph.,  see  p.  421 ;  41  E.  R.  1002 ;  78  R.  R.  123  ;  and  Mr.  Fisher's  view, 
as  expressed  in  the  fourth  edition,  is  not  adopted  by  Mr.  Underbill, 
the  learned  editor  of  the  fifth  edition  of  Fisher  on  Mortgages,  1897,  see 
p.  547n. 

When  a  prior  judgment  creditor  had  obtained  a  mortgage  subsequent 
to  but  without  notice  of  an  intermediate  judgment,  it  was  held  that 
the  holder  of  such  intermediate  judgment  could  not  get  a  sale  without 
paying  off  the  first  judgment  and  the  mortgage,  [but  the  report  is  not  a^ 
full  one,  and  the  mortgage  may  have  been  a  mortgage  of  the  legal  estate, 
in  which  event  the  first  judgment  creditor  would  be  prior  to  the  second,, 
quite  irrespective  of  the  doctrine  of  tacking]  {SmUhson  v.  Thompson, 
1739,  1  Atk.  520). 

Subsequent  Equitable  Mortgagee  getting  in  a  Prior  Judgment. — Before 
the  Act  1  &  2  Vict.  c.  110,  an  equitable  mortgagee  gained  a  considerable 
advantage  from  getting  a  prior  judgment.  If  an  equitable  mortgagee 
who  had  lent  his  mortgage  money  without  notice  bought  in  a  prior 
judgment,  and  under  an  elegit  upon  the  judgment  the  land  was  ex- 
tended at  less  than  its  real  value,  a  mortgagee  prior  to  the  equitable 
mortgagee  could  not  compel  him  to  account  for  the  excess  of  actual 
receipts  above  the  extended  value,  but  he  might  hold  that  excess  towards- 
satisfaction  of  his  mortgage,  until,  according  to  the  extended  value,  the 
judgment  was  satisfied  (see  Braxx  v.  Ihichess  of  Marlborough,  1728,  rules 
2  and  5,  2  P.  Wms.  491 ;  24  E.  R.  829).  He  was  then  no  longer  protected 
(see  Huntingdon  v.  Grenville,  1792,  1  Vern.  52 ;  23  E.  R.  303).  It  was, 
however,  enacted  by  1  &  2  Vict.  c.  110,  s.  11,  that  the  judgment  creditor 
shall  account  for  the  real  value,  and  consequently  it  appears  that  a 
subsequent  equitable  mortgagee  can  now  gain  no  advantage  by  buying 
in  a  prior  judgment  (see,  however,  Robbins  on  Mortgages,  1897  ed.,  pp. 
1226,  1227;  Coote,  Mortgages,  7th  ed.,  1246,  1247;  and  per  Lord 
Westbury  in  Phillips  v.  Phillips,  1862,  4  De  G.,  F.  &  J.  217 ;  45  E.  R. 
1166). 

Prior  Mortgagee  Acquiring  Subsequent  Judgment. — On  the  other  hand, 
before  1  &  2  Vict.  c.  110,  a  mortgagee  having  a  first  legal  mortgage  who 
advanced  further  money  to  the  mortgagor,  if  he  obtained  judgment  for 
the  debt,  was  treated  as  having  made  the  further  advance  trusting  to 
the  security  of  the  land  (Brace  v.  Duchess  of  Marlbm'ough,  supra,  1728, 
2  P.  Wms.  496 ;  24  E.  R.  824 ;  Shepherd  v.  Titley,  1742,  2  Atk.  351 ; 
26  E.  R.  612;  see  also  Ex  parte  Knott,  1806,  11  Ves.  619;  32  E.  R, 
1225;  8  R.  R.  254;  and  in  a  case  since  the  Act  1  &  2  Vict.  c.  110,  in 
1847  (Lacey  v.  Ingle,  1847,  2  Ph.  421 ;  41  E.  R.  1002 ;  78  R.  R.  123)). 

Ex  parte  Evans,  In  re  Watkins,  1879,  13  Ch.  D.  252,  sometimes 
referred  to  as  bearing  on  the  subject,  seems  to  turn  merely  on  the  fact 
that  a  judgment  perfected  by  the  appointment  of  a  receiver  by  way  of 
equitable  execution  was  good  as  against  the  trustee  in  bankruptcy. 
VOL.  XIIL  48 


'754    TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE) 

Qualification  of  Tacking  where  the  Legal  Estate  is  Affected  with  a 
Trust. — (1)  A  subsequent  incumbrancer  cannot  tack  an  equitable  incum- 
brance to  a  legal  estate  acquired  with  notice  that  the  person  from  whom 
it  is  obtained  holds  it  as  a  trustee ;  (2)  or  apparently,  if  he  has  not 
notice  of  this,  but  the  trustee  conveys  it  without  consideration.  These 
rules  are  not  given  in  Brace  v.  Duchess  of  Marlborough,  swpra,  but  they 
form  an  important  qualification  of  the  doctrine  of  tacking.  The  first  is 
recognised  by  Lord  Westbury  in  Phillips  v.  Phillips,  1861,  4  De  G., 
E.  &  J.  217;  45  E.  E.  1166;  see  also  Saunders  v.  Deheiv,  1692,  2  Vern. 
271 ;  23  E.  R.  775 ;  see  also  per  Lord  Eldon  in  Maundrell  v.  Maundrell, 
1804,  10  Ves.  p.  261 ;  32  E.  R.  839 ;  7  R.  R.  393 ;  and  by  Lord  Hard- 
wicke  in  Willoughhy  v.  Willoughby,  1787,  1  T.  R.  772 ;  1  R.  R.  397. 

In  the  following  cases  the  rule  has  been  held  to  apply,  and  the 
mortgagee  has  not  been  allowed  to  tack  : — Allot  v.  Knight,  1846,  5  Hare, 
272 ;  67  E.  R.  915 ;  71  R.  R.  100 ;  on  app.  16  L.  J.  Ch.  370 ;  11  Jur. 
527;  Sharpies  v.  Adains,  1863,  32  Beav.  213,  p.  216;  55  E.  R.  84; 
Taylor  v.  London  and  County  Bank,  [1901]  2  Ch.  231,  p.  256.  Lord 
Romilly  held  in  Sharpies  v.  Adams  that  a  mortgagor  could  not  alter 
priorities  by  conveying  the  legal  estate  to  the  holder  of  one  of  three 
equitable  mortgages  [created  by  himself].  In  Maxfidd  v.  Burton,  1873, 
L.  R.  17  Eq.  15,  Sir  G.  Jessel  said  that  a  mortgagor  could  not  convey 
the  legal  estate  to  the  trustee  of  a  settlement  made  subsequent  to  an 
equitable  mortgage  [so  as  to  give  that  trustee  priority,  this  implies]  that 
the  grantee  of  the  legal  estate  could  not  tack  a  legal  estate  so  conveyed, 
though  he  took  it  without  notice  that  the  holder  was  trustee.  In  this 
case  no  further  consideration  was  given  on  acquiring  the  legal  estate, 
and  in  Garnham  v.  Skipper,  1885,  53  L.  T.  940 ;  55  L.  J.  Ch.  263,  the 
dictum  was  explained  by  North,  J,,  as  only  applicable  where  no  con- 
sideration was  given  ;  and  see  Mumford  v.  Stohwasser,  1874,  L.  R.  18  Eq. 
556,  where  Sir  G.  Jessel  said  that  if  it  was  necessary  he  should  hold 
that  a  person  knowing  "  that  he  is  a  trustee  cannot  without  receiving 
value  at  the  time  by  committing  a  breach  of  trust  deprive  his  own  cestui 
que  trust  of  his  right."  In  Harpham  v.  Shacklock,  1881,  19  Ch.  D.  207, 
the  Court  of  Appeal  held  that  the  mortgagee  could  not  tack  the  legal 
estate  got  in  after  notice  that  the  holder  was  a  bare  trustee  holding 
under  a  satisfied  mortgage.  [A  mortgagor  cannot  by  the  interposition 
of  a  third  person  defeat  rights  he  himself  has  created,  and  where  a 
mortgagor  conveyed  the  equity  of  redemption  to  a  trustee  to  pay  off 
three  mortgages  and  his  own  costs,  the  trustee  was  held  not  to  obtain 
priority  for  the  third  mortgage  over  the  second  by  paying  off  the  third, 
although  that  mortgagee  had  no  notice  of  the  second  {Ledhrooke  v. 
Passmore,  1887,  57  L.  J.  Ch.  855).] 

It  has  been  decided  that  the  exception  does  not  apply  when  the 
legal  estate  is  taken  from  an  unsatisfied  mortgagee  [and  that  where,  for 
example,  the  first  mortgagee  has  received  his  money  from  the  third,  he 
can  convey  to  the  third  notwithstanding  notice  of  the  second]  {Peacock 
V.  Burt,  1834,  4  L.  J.  Ch.  33 ;  Bates  v.  Johnson,  1859,  John.  304,  see  pp. 
813,  314;  70  E.  R.  442),  but  in  West  L.  Comml.  Bank  v.  Reliance,  etc., 
1885,  29  Ch.  D.  954,  the  Court  of  Appeal  said  the  doctrine  of  Peacock 
V.  Burt,  supra,  would  not  be  extended.  See  also  judgment  of  James, 
L.J.,  in  Pilcher  v.  Eawlins,  1872,  L.  R.  7  Ch.  268.  The  House  of  Lords 
in  Taylor  v.  Bussell,  [1892]  A.  C.  244,  held  that  a  first  mortgagee  whose 
mortgage  was  unsatisfied,  and  who  had  no  notice  of  a  mesne  incum- 
brance, might,  without  receiving  consideration,  convey  to  a  third  mort- 


TACKING  (AND  PEOTECTION  OF  LEGAL  ESTATE)    755 

gagee  who  had  advanced  his  money  without  notice,  but  at  the  time  of 
taking  the  legal  estate  had  notice  of  a  mesne  incumbrance,  a  legal  estate 
in  part  of  the  property  subject  to  the  first  mortgage,  and  that  the  legal 
estate  thus  obtained  might  be  tacked  by  the  third  mortgagee.  There 
the  first  mortgage  was  unsatisfied.  It  is  to  be  observed  in  this  case,  on 
the  one  hand,  (1)  that  the  first  mortgagee  received  no  consideration  for 
the  transfer  to  the  third  mortgagee ;  on  the  other,  (2)  that  the  first  mort- 
gagee had  no  notice  of  the  intermediate  mortgage,  and  therefore  could 
not  in  any  sense  have  become  trustee  for  him ;  and  (3)  that  the  first 
mortgagee's  mortgage  was  unsatisfied.  [The  transferee  must  not  get  the 
legal  estate  from  a  person  whom  he  knows  or  ought  to  know  to  be  a 
trustee  upon  express  trusts  for  a  prior  incumbrancer.  There  are  some 
expressions  which  carry  the  exception  further  and  suggest  that  a  satis- 
fied mortgagee  is  in  the  position  of  a  trustee  for  his  mortgagor  and  also 
that  the  legal  estate  cannot  be  effectually  got  in  indirectly  from  a  person 
who  is  in  fact  a  trustee  on  express  trusts,  even  though  the  transferee 
has  no  knowledge  of  the  fact  unless,  perhaps,  where  value  is  given  to 
the  trustee  at  the  time.  These  expressions  do  not,  however,  appear  to 
have  been  as  yet  stated  or  accepted  as  established  or  developed  law 
(Wright,  J.,  in  Powell  v.  London  and  Provincial  Bank,  [1893]  1  Ch.  610 ; 
affirmed,  [1893]  2  Ch.  558).]  Further,  "  a  trust  or  equity  to  affect  the 
conscience  of  him  who  has  got  in  the  legal  estate  must  be  a  trust  or 
equity  not  in  favour  of  some  third  person  who  may  have  no  care  or 
desire  to  insist  upon  it,  but  a  trust  or  equity  in  favour  of  the  person 
against  whom  the  legal  estate  is  set  up  "  (Fry,  L.J.,  in  Taylor  v.  Pussell, 
[1901]  1  Ch.  8). 

A  Mortgagee  may  tack  Debts  not  heing  a  Charge  on  the  Pro/periy  as 
ogaiTist  the  Heir,  Beneficial  Devisee  of  a  Deceased  Mortgagor,  or  the  Executor 
of  the  Mortgagor  if  the  Estate  is  Solvent. — A  mortgagee  may,  however, 
tack  [bond  or  specialty]  debts  not  being  a  charge  against  the  heir  or 
beneficial  devisee  of  the  mortgagor  if  he  were  seeking  to  redeem  {Price 
V.  Fastnedge,  1769,  Amb.  685 ;  27  E.  R.  444 ;  and  cases  cited  in  note  in 
2nd  ed.  of  Amb.  by  Blunt,  p.  686).  So  also  against  the  executor  if  the 
testator's  estate  were  solvent  (ibid.;  and  see  Elvey  v.  Norwood,  1852, 
5  De  G.  &  Sm.  240 ;  64  E.  R.  1099) ;  or  against  a  volunteer  (ibid. ;  see 
Troughton  v.  Troughton,  1747,  3  Atk,  659),  though  not  against  the 
assignee  of  the  heir  (Coleman  v.  Winch,  1721,  1  P.  Wms.  776 ;  24  E.  R. 
609 ;  Archer  v.  Snatt,  1737,  2  Stra.  1107 ;  see  also  Du  Vigierv.  Lee,  1843, 
2  Hare,  326;  67  E.  R.  134;  62  R.  R.  124,  which  was  commented  on  in 
Hunter  v.  Nockolds,  1850,  2  Ph.  540 ;  41  E.  R.  1052). 

[The  principle  on  which  the  above  decisions  is  founded  is  that 
circuity  of  action  is  thereby  avoided.  As  against  the  heir,  for  example, 
it  is  because  the  estate  in  his  hands  became  liable  to  the  specialty 
debt  that  tacking  was  allowed  against  him.  The  same  would  be  the 
case  against  trustees  of  real  estate  for  payment  of  debts  where  that  real 
estate  was  sufficient.] 

In  Talbot  v.  Frere,  1878,  9  Ch.  D.  572,  Sir  G.  Jessel,  M.R.,  distin- 
guished the  case  of  the  deceased  mortgagee's  estate,  being  solvent  where 
the  mortgagee  might  retain  as  against  the  executor,  from  the  case  where 
it  was  insolvent,  in  which  case  the  Master  of  the  Rolls  held  the  mortgagee 
could  not  retain. 

Except  in  the  Cases  above  mcTdioned  the  Money  to  be  tacked  must  have 
been  advanced  on  the  Property,  and  the  Person  tacking  must  have  equal 
Equity  except  as  to  Time. — These  two  further  qualifications  of  the  right 


V56    TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE) 

to  tack  are  thus  expressed  by  Lord  Cottenham :  "  A  party  claiming  to 
tack  must,  as  against  the  party  against  whom  the  tack  is  to  operate, 
(1)  have  advanced  his  money  upon  the  credit  of  the  land ;  (2)  he  must, 
except  as  to  time,  have  an  equal  equity "  {Lacey  v.  Ingle,  1847,  2  Ph. 
419).  In  Heir  of  Cannon  v.  Pack,  1714, 6  Vin.  Air.,  222,  pi.  6,  a  mortgagee 
of  copyholds  was  not  allowed  to  tack  a  judgment,  because  copyhold  lands 
were  not  then  liable  to  execution  on  a  judgment;  and  the  second  rule 
in  Brace  v.  Duchess  of  Marlborough  shows  that  a  judgment  creditor  buying 
in  a  subsequent  mortgage  was  not  allowed  to  tack,  because  the  money 
secured  by  the  judgment  was  not  advanced  on  the  security  of  the  land. 

A  prior  mortgagee  is  not  permitted  to  tack  a  bond  debt  against 
mesne  incumbrances  (Powis  v.  Corbet,  1747,  3  Atk.  556;  26  E.  K.  1120), 
or  against  other  creditors  {Morret  v.  Paske,  1740,  2  Atk.  54 ;  26  E.  R. 
429),  or  against  simple  contract  creditors  {Heams  v.  Bance,  1748,  3  Atk. 
630 ;  Rolfe  v.  Chester,  1855,  20  Beav.  610 ;  52  E.  R.  739 ;  see  also  Irby 
v.  Irby,  1855, 22  Beav.  217 ;  52  E.  R.  1091 ;  Talbot  v.  Frere,  1878, 9  Ch.  D. 
568 ;  In  re  Gregson,  1887,  36  Ch.  D.  223  ;  In  re  Raggett,  1880, 16  Ch.  D. 
117),  or  against  the  mortgagor  personally  {Elvey  v.  Norwood,  1852,  5  De 
G.  &  Sm.  240 ;  64  E.  R.  1099),  or  his  assignee  {Archer  v.  Snatt,  1737, 
2  Stra.  1107). 

A  mortgagee  is  entitled  under  3  &  4  Will.  iv.  c.  27,  s.  42,  to  only  six 
years'  arrears  of  interest  against  the  land,  but  under  the  covenant  he  is 
entitled  to  twenty  years,  but  he  cannot  against  the  land  tack  the  debt 
under  the  covenant,  so  as  to  claim  twenty  years'  interest  as  against  an 
incumbrance,  at  any  rate  where  the  mortgagee  is  suing  {Hunter  v. 
Nockolds,  1850,  1  Mac.  &  G.  640;  41  E.  R.  1413;  Sinclair  v.  Jackson, 
1853,  17  Beav.  405 ;  51  E.  R.  1090). 

[Where  the  mortgagor  is  seeking  to  redeem,  however,  he  must  pay  all 
arrears  of  interest  due  under  the  security  given  by  him  {Edmunds  v. 
Waugh,  1875,  L.  R.  1  Eq.  418 ;  Dingle  v.  Coppen,  [1899]  1  Ch.  726 ;  In 
re  Lloyd,  [1903]  1  Ch.  385).] 

Both  Debts  or  Estates  must  be  Held  in  the  same  Right. — A  person 
claiming  to  tack  must  hold  both  estates  or  debts  in  the  same  right 
{Barnet  v.  Weston,  1806,  12  Ves.  130;  33  E.  R.  50;  8  R.  R.  319),  but  if 
in  one  case  he  holds  as  beneficiary  and  in  the  other  as  trustee,  it  is 
sufficient  if  he  has  also  the  principal  beneficial  interest  {Price  v.  Fastnedge, 
1769,  Amb.  685 ;  27  E.  R.  444).  A  trustee  who  has  the  legal  estate  and 
takes  from  his  cestui  que  trust  an  equitable  mortgage  can  avail  himself 
of  that  estate  as  a  protection  against  a  prior  equitable  mortgage  from 
the  cestui  que  timst,  of  which  he  had  no  notice  {Phipps  v.  Lovegrove,  1873, 
L.  R.  16  Eq.  80;  Newman  v.  Newman,  1885,  28  Ch.  D.  674;  see  also 
JSpencer  v.  Pearsmi,  1857,  24  Beav.  266;  53  E.  R.  360). 

Mortgagees  of  Shares  Tacking. — As  between  two  persons  claiming 
title  to  shares  in  a  company  formed  under  the  Companies  Act,  1862, 
with  articles  of  association  regulating  the  transfer  of  its  shares,  the 
priority  in  date  of  title  prevails  unless  the  claimant  second  in  point 
of  time  can  show  that  as  between  himself  and  the  company,  before 
the  company  received  notice  of  the  claim  of  the  first  claimant,  the 
second  claimant  has  acquired  the  full  status  of  a  shareholder,  or,  at 
all  events,  that  all  formalities  have  been  complied  with,  and  that 
nothing  more  than  some  purely  ministerial  act  remains  to  be  done  by 
the  company,  which,  as  between  the  company  and  the  second  claimant, 
the  company  could  not  have  refused  to  do  forthwith ;  so  that,  as 
between  himself  and  the  company,  he  may  be  said  to  have  acquired. 


TACKING  (AND  PEOTECTION  OF  LEGAL  ESTATE)    757 

in  the  words  of  Lord  Selborne  in  SocUU  GdrUrale  de  Paris  v.  Walker^ 
1885,  11  App.  Cas.  20-29,  "a  present  absolute,  unconditional  right  to 
have  the  transfer  registered  before  the  company  was  informed  of  the 
existence  of  a  better  title."  See  also  Roots  v.  Williamson,  1888, 38  Ch.  D. 
485;  Moore  v.  North-Western  Bank,  [1891]  2  Ch.  599;  Ireland  v.  Hart, 
[1902]  1  Ch.  522.     See  Trusts,  Remedy  hy  Following  Trust  Property. 

Mortgages  to  Secure  further  Advances. — Where  a  mortgage  is  expressly 
framed  to  secure  further  advances  [the  mortgagee  cannot,  after  notice 
of  a  subsequent  incumbrance,  tack  as  against  it  further  advances  made 
by  him  to  the  mortgagor  {Hopkinson  v.  Roll,  1861,  9  H.  L.  C.  534;  11 
E.  R.  829),  and  the  doctrine  applies  notwithstanding  that  the  further 
advances  are  made  in  pursuance  of  a  covenant  by  the  mortgagee  to 
make  them  {West  v.  Williams,  [1899]  1  Ch.  132).  This]  is  clear  where 
the  mortgage  carries  the  legal  estate  in  land,  [and  it  is  also  clear  that 
the  mortgagee  holds  his  security  for  all  advances  made  before  he 
receives  notice  of  a  second  incumbrance] ;  but  it  is  not  so  clear  whether 
an  equitable  first  mortgage  to  secure  a  further  advance  stands  on  the 
same  footing,  or  whether  a  second  mortgagee  has  the  benefit  of  the  rule 
that  equitable  incumbrances  shall  take  in  order  of  date  so  as  to  have 
priority  over  further  advance  made  subsequent  to  the  second  mortgage, 
and  without  notice  of  a  prior  mortgagee.  See  the  fourth  rule  in  Brace  v. 
Dutchess  of  Marlborough,  1728,  2  P.  Wms.  495 ;  24  E.  R.  829 ;  Willoughhy 
V.  Willoughhy,  1787,  1  T.  R.  773 ;  1  R  R.  397 ;  and  per  Lindley,  L.  J.,  in 
BaUey  v.  Barnes,  [1894]  1  Ch.  25. 

The  claim  of  a  mortgagee  to  the  charge  for  further  advances,  as  against 
a  mesne  incumbrancer  when  the  first  mortgage  is  expressly  to  secure 
further  advances,  does  not  come  within  the  usual  definition  of  tacking, 
as  the  charge  arises  under  the  same,  and  not  a  different  security ;  and 
in  an  Irish  case  {In  re  Byrnes  Estate,  15  L.  R.  Ir.  189-323)  it  was  said 
not  to  be  tacking  so  as  to  come  within  sec.  4  of  the  Irish  Registry  Act, 
6  Anne,  st.  2.     Still,  as  Hopkinson  v.  Roll,  1861,  9  H.  L.  C.  534 ;  11  E.  R. 
829,  decided  that  after  a  mortgage  to  secure  further  advances  the  mort- 
gagor was  owner  of  the  equity  of  redemption  so  as  to  be  able  to  give  a 
title  to  a  second  mortgagee  as  against  further  advances  (see  per  Campbell, 
L.C.,  9  H.  L.  534),  it  might  seem  to  follow  thau  in  cases  of  mortgages  of 
land,  when  notice  is  not  necessary  to  perfect  a  security  against  third 
persons  (see  Rooper  v.  Harrison,  1855,  2  Kay  &  J.  100 ;  69  E.  R.  704, 
and  cases  there  cited),  the  second  mortgagee  might  claim  his  priority 
against  advances  after  his  mortgage,  although  he  did  not  give  notice ; 
but  Hopkinson  v.  Rolt  did  not  go  so  far;  it  only  established  the  priority 
of  the  second  mortgagee  against  further  advances  by  the  first  mortgagee 
after  notice  of  the  second  mortgage ;  and  Lord  Campbell,  at  p.  535,  says : 
"The  hardship  upon  bankers  from  this  view  of  the  subject  at  once 
vanishes  when  we  consider  that  the  security  of  the  first  mortgage  is  not 
impaired  without  notice  of  a  second."     Though  the  report  of  the  facts 
in  the  House  of  Lords  reports  is  not  quite  clear  it  seems  that  in  that 
case  the  mortgage  to  secure  further  advances  was  an  equitable  mortgage 
only,  and,  if  so,  the  dictum  covers  the  point.     And  it  would  seem  that 
a  second  mortgagee  who  has  notice  of  a  first  mortgage  expressly  to 
secure  further  advances   might  be   said  to  encourage  the  mortgagor 
to  defraud  the  first  mortgagee,  if  he,  the  second  mortgagee,  stood  by 
and  gave  no  notice  to  his  first  mortgagee,  and  that  in  such  case  the 
prior  mortgagee  would  have  the  better  equity.     This  observation  would 
not  apply  if  the  second  mortgagee  had  no  notice  of  the  first;  but  it 


753    TACKING  (AND  PROTECTION  OF  LEGAL  ESTATE) 

seems  that  in  such  case  the  mortgage  to  secure  further  advances,  though 
equitable,  would  give  priority  for  further  advances  without  notice.  The 
dictum  in  Eolt  v.  Hopkinson,  mtpra,  seems  to  extend  to  this.  Of  actual 
decision,  Calisher  v.  Forbes,  1871,  L.  E.  7  Ch,  113,  appears  of  the  English 
cases  to  go  furthest  towards  establishing  this ;  though  the  decision  of  the 
priorities  in  Calisher  v.  Forbes,  supra,  may  have  depended  on  the  nature 
of  the  property  (a  sum  of  money  in  the  hands  of  agents)  and  the  doctrine 
of  notice  to  the  agent  or  trustee  making  him  trustee  for  the  incumbrancer, 
while  the  doctrine  of  notice  giving  priority  does  not  apply  in  the  case  of 
a  mortgage  of  land  where  the  first  mortgage  is  an  equitable  mortgage 
not  extending  to  further  advances  (see  Union  Bank  v.  Kent,  1888, 
39  Ch.  D.  243). 

Protection  of  Legal  Estate  Obtained  by  Purchaser  withovt  Notice  at  the 
same  Time  with  his  Payment. — This  is  not  tacking,  but  it  depends  on 
the  same  principle  as  tacking,  that  is  to  say,  a  purchaser  without 
notice  if  he  obtains  the  legal  estate  will  not  have  that  advantage  taken 
from  him. 

If  he  gets  the  legal  estate  at  the  same  time  that  he  pays  his  money, 
he  is  in  a  better  position  than  one  who  has  paid  his  money,  and  sub- 
sequently gets  the  legal  estate,  which  is  tacking.  Though  the  Courts 
are  not  favourable  to  extending  the  doctrine  of  tacking,  they  will  pro- 
bably show  favour  to  any  purchaser  who  is  diligent  to  get  the  legal 
estate  at  the  time  of  his  purchase.  [From  such  a  purchaser  a  Court 
of  equity  takes  away  nothing  which  he  has  honestly  acquired  {Taylor  v. 
London  and  County  Bank,  [1901]  2  Ch.  p.  256).]  The  special  distinction 
between  this  case  and  that  of  tacking  is  that  the  purchaser  who  gets 
the  legal  estate  at  the  time  of  his  purchase  without  notice  is  not  subject 
to  the  rule  discussed,  supra,  which  precludes  tacking  when  the  legal 
estate  is  obtained  from  a  trustee.  It  is  only  necessary  that  the 
purchaser  in  this  case  should  not  have  notice  either  actual  or  con- 
structive. See  Pitcher  v.  Bawlins,  1872,  L.  E.  7  Ch.  274,  where  the 
trustee  fraudulently  released  the  legal  estate  to  the  mortgagor,  and  the 
mortgagor  gave  a  legal  mortgage  to  a  person  who  advanced  his  money 
without  notice,  and  he  was  held  entitled  as  against  the  cestuis  que  trust. 
In  Jones  v.  Powles,  1834,  3  Myl.  &  K.  581,  a  person  purchased  from  a 
claimant  under  a  forged  will,  obtaining  at  the  same  time,  and  as  part 
of  the  transaction,  a  conveyance  of  the  legal  estate  under  a  satisfied 
mortgage,  and  his  title  was  held  good.  This  case  extended  also  to 
tacking  further  advances.  In  Young  v.  Young,  1867,  3  Eq.  801,  the 
mortgagee  obtained  a  transfer  of  a  legal  mortgage  at  the  same  time 
that  he  advanced  a  further  sum  to  a  person  falsely  representing  him- 
self as  entitled  as  heir  to  the  mortgagor,  and  was  held  entitled  (and 
see  Carlisle  Bank  v.  Thompson,  1884,  28  Ch.  D.  398 ;  Cator  v.  Farl  of 
Pembroke,  1783,  1  Bro.  C.  C.  302;  28  E.  E.  1145;  Byre  v.  Sadleir,  14  Ir. 
Com,  L.  119;  15  Ir.  Com.  L.  1;  and  as  to  lien  for  unpaid  purchase 
money,  Kettlewell  v.  Watson,  1884,  26  Ch,  D,  p,  501 ;  Sharp  v,  Foy, 
1866,  L,  E,  4  Ch.  35),  [Under  the  Building  Societies  Act,  1836, 
6  &  7  Will,  IV,  c.  32,  s.  5,  the  receipt  of  a  building  society  for  the  mort- 
gage money  indorsed  on  the  deed  vests  the  legal  estate  "  in  the  person 
or  persons  for  the  time  being  entitled  to  the  equity  of  redemption." 
This  means  in  the  person  who  has  the  best  right  to  call  for  the  legal 
estate]  {Hashing  v.  Smith,  1888,  13  App.  Cas.  582), 

The  decision  of  Wood,  V,-C.,  in  Carter  v.  Carter,  1857,  3  Kay  &  J. 
617 ;  69  E.  E.  1256,  has  caused  some  difficulty,  but  it  seems  that  it  only 


TALES  DE  CIECUMSTANTIBUS  7&a 

made  an  exception  to  the  extent  that  where  the  legal  estate  obtained 
by  a  purchaser  without  notice,  could  only  pass  to  the  purchaser  through 
a  concealed  deed  which  gave  express  notice  of  trusts  or  equities,  although 
the  purchaser  or  mortgagee  had  not  notice  of  the  deed,  and  thought  that 
he  took  through  another  title,  he  could  not  claim  through  that  deed 
against  trusts  disclosed  by  it ;  and  even  as  regards  this  exception  the 
decision  was  doubted  by  the  majority  of  the  Court  of  Appeal  in  Pilcher 
V.  Rawlins,  supra,  1874,  L.  R.  7  Ch.  274,  pp.  269  and  272.  BohiTison  v. 
Briggs,  1853,  1  Sm.  &  G.  188,  appears  to  have  turned  on  a  question  of 
constructive  notice  through  a  solicitor,  otherwise,  so  far  as  regards  the 
holder  of  the  legal  estate,  it  appears  inconsistent  with  other  authorities. 
It  is  also  to  be  observed  that  in  MxLmford  v.  Stohioasser,  1874,  L.  R. 
18  Eq.  556,  where  Sir  G.  Jessel,  M.R.,  held  that  the  equitable  mortgagee 
could  not  claim  the  benefit  of  a  legal  estate  under  an  assignment  sub- 
sequent to  his  advance  after  notice  of  a  trust,  he  also  said  (see  p.  562) : 
"  But  the  mistake  which  Stohwasser  or  his  advisers  made,  was  in  not 
taking  that  assignment  when  he  advanced  his  money.  Then  he  might 
have  been  safe." 

Who  are  Purchasers  ?- — The  resolution  cited  at  the  commencement  of 
this  article  from  {^Marsh  v.  Lee'\  refers  in  terms  to  a  "  purchaser  or  mort- 
gagee coming  in  upon  valuable  consideration,"  and  the  Lord  Keeper  said 
the  question  is  not  whether  the  consideration  be  adequate,  but  whether 
it  is  valuable.  This  is  approved  of  by  Sir  T.  Plumer  in  Copis  v.  Middleton, 
1817,  2  Madd.  410;  56  E.  R.  386;  17  R.  R.  226.  It  seems  that  it  is 
sufficient  to  bring  a  person  within  the  title  "  purchaser  "  within  the  rule 
if  he  gives  any  valuable  consideration  in  good  faith  (see  the  cases  of 
Thorndike  v.  Hunt,  1859,  3  De  G.  &  J.  Ch.  563 ;  44  E.  R.  1356 ;  Taylor 
V.  Blakelock,  1886,  32  Ch.  D.  560;  Case  v.  James,  1861,  29  Beav.  512; 
54  E.  R.  726 ;  and  3  De  G.,  E.  &  J.  256 ;  45  E.  R.  876). 

And  note  that  there  is  an  exception  to  the  doctrine  in  any  case 
within  24  &  25  Vict.  c.  96,  s.  100,  where  property  has  been  acquired 
through  a  felony  or  misdemeanor,  though  the  actual  property  may  have 
passed.  Nevertheless,  on  conviction  the  real  owner  is  entitled  to  restitu- 
tion {Bentley  v.  Vihnont,  1887,  12  App.  Cas.  471),  unless  it  comes  within 
the  exceptions  in  that  clause,  [notwithstanding  the  Factors  Act  {Helhy 
V.  Matthews,  [1895]  A.  C.  471)]. 

{Authorities, — Fisher  on  Mortgages,  by  Underbill,  5th  ed.,  1897 
Robbins  on  Mortgages,  Ist  ed.,  1897;  Ashburner  on  Mortgages,  1897 
Coote's  Law  of  Mortgages,  7th  ed.,  1904.] 

Tail. — See  Estates  of  Inheritance,  Estates  Tail. 

Take  and  Carry  Away.— See  Larceny. 

Taken  in  Satisfaction. — See  In  re  Cosier,  Humphreys  \, 
Gadsden,  [1897]  1  Ch.  325. 

Take  or  Destroy.— To  "take  or  destroy"  the  spawn  of  fish 
has  been  held  to  mean  to  take  such  spawn  for  destruction,  not  for  the 
purpose  of  removing  the  same  to  beds  for  further  growth  and  maturity 
{Bridges  v.  Richardson,  1814,  2  M.  &  S.  568 ;  see  also  R.  v.  Mallinson, 
1758,  2  Burr.  628).     See  also  Stroud,  Jxid.  Did. 

Tales  de  circumstantibus.— See  Jury,  Vol.  VIL  p.  573. 


760  TALESMAN 

Talesman.— See  Jury,  Vol.  VII.  p.  573. 

TalfOUrd'S  Acts. — The  popular  name  given  to — (1)  the  Act 

2  &  3  Vict.  c.  54,  relating  to  the  custody  of  infants,  repealed  and  re- 
placed by  36  &  37  Vict.  c.  12 ;  and  (2)  the  Copyright  Act,  1842,  5  &  6 
Vict.  c.  45,  these  statutes  being  so  called  because  carried  through  Parlia- 
ment principally  by  the  efforts  of  Serjeant  (afterwards  Mr.  Justice) 
Talfourd. 

Tally  (French,  taillier,  to  cut). — A  primitive  method  of  keeping 
accounts  was  by  making  notches  in  two  pieces  of  wood  of  the  same  size 
placed  together,  or  by  making  the  indentations  on  one  piece  and  then 
splitting  it  in  two ;  the  one  piece,  or  tally,  being  kept  by  the  creditor, 
and  the  other  by  the  debtor.  This  method  of  reckoning  continued  in 
use  in  the  Exchequer  till  1826,  when  sec.  2  of  23  Geo.  ill.  c.  82,  came 
into  operation  on  the  death  of  the  last  of  the  chamberlains  of  the 
Exchequer.  The  Exchequer  tallies  were  notched  according  to  a  gradu- 
ated  scale ;  a  notch  of  one  and  a  half  inches  represented  £1000,  a  notch 
of  one  inch,  £100,  and  so  on.  In  1834  the  returned  tallies  were  ordered 
to  be  destroyed,  and  they  were  used  as  fuel  in  the  stoves  of  the  House 
of  Lords,  and  it  is  said  that  being  used  in  too  large  quantities,  over- 
heated the  flues  and  occasioned  the  burning  of  the  Houses  of  Parliament 
(see  Anson,  Law  and  Custom  of  the  Constitution,  pt.  ii.,  2nd  ed.,  pp.  328, 
329,  where  an  illustration  of  an  Exchequer  tally  is  given). 

Tally  Trade, — A  system  of  supplying  goods  on  credit,  the  cus- 
tomers agreeing  to  pay  for  the  goods  by  certain  periodical  payments — 
weekly  or  monthly  (see  M'Culloch,  Diet,  of  Commerce). 

Tasmania. — Area. — The  island  of  Tasmania  is  situated  at  the 
southern  extremity  of  the  Australian  Continent,  and  together  with 
the  adjacent  islands — fifty-five  in  number — forms  the  smallest  State  of 
the  Commonwealth  of  Australia  {q.v.).  The  total  area  of  the  State  of 
Tasmania  is  26,215  square  miles,  or  more  than  half  the  size  of  England, 
and  less  than  one-third  of  its  nearest  neighbour,  the  State  of  Victoria. 
Norfolk  Island,  which  from  1843  to  1856  was  annexed  to  Tasmania, 
is  now  administered  by  New  South  Wales,  and  is  dealt  with  in  that 
article. 

Earlier  History. — Tasmania  was  discovered  in  1642  by  the  Dutch 
navigator,  Tasman,  who  named  it  Van  Diemen's  Land,  but  it  was  not 
until  1797  that  it  was  found  to  be  an  island.  In  1803  it  was  occupied 
by  Great  Britain,  and  in  the  following  year  the  first  penal  settlement 
was  placed  there.  Up  till  1813  it  was  merely  a  place  of  transportation 
from  Great  Britain  and  New  South  Wales,  of  which  colony  it  was  a 
dependency  until  1825,  when  it  was  formed  into  a  separate  colony. 
Under  6  Geo.  iv.  c.  39,  amended  by  10  &  11  Vict.  c.  57,  the  Van  Diemen's 
Land  Company  was  constituted,  and  power  given  to  it  to  cultivate  waste 
lands  by  means  of  convict  labour.  In  1831,  under  9  Geo.  iv.  c.  83,  ss.  1, 
13,  a  Charter  of  Justice,  March  4,  1831  (St.  E.  &  0.,  Eev.  1904,  vol.  i., 
"  Australia,  Commonwealth  of,"  p.  50),  established  a  Supreme  Court  and 
regulated  appeals  to  His  Majesty  in  Council.  The  Government  of  the 
colony  was  carried  on  in  accordance  with  provisions  of  9  Geo.  iv.  c.  83, 
as  amended  by  5  &  6  Vict.  c.  76,  s.  53 ;  7  &  8  Vict.  c.  74,  s.  6 ;  and  13  &  14 
Vict.  c.  59 — the  last  Act  providing  for  a  partially  elective  Legislative 


TASMANIA  761 

Council — until  responsible  Government  was  introduced  by  Order  in 
Council  of  May  1, 1856  (ibid.,  p.  45),  assenting  to  the  Colonial  Constitu- 
tion Act,  18  Vict.,  No.  17.  By  Order  in  Council  of  July  21, 1885  (iMd., 
p.  40),  the  name  of  Tasmania  was  substituted  for  that  of  Van  Diemen's 
Land. 

Constitution. — The  Constitution  is  regulated  by  the  Colonial  Act, 
18  Vict.,  No.  17,  as  subsequently  amended. 

By  Letters  Patent  of  October  29,  1900  (ibid.,  p.  47),  the  office  of 
Governor  of  the  State  of  Tasmania  and  its  dependencies  in  the  Com- 
monwealth of  Australia  was  reconstituted,  and  provision  made  for  the 
composition  of  the  Executive  Council,  which  consists  of  the  Ministry, 
with  the  Governor  as  President. 

The  State  Parliament  consists  of  a  Legislative  Council  and  a  House 
of  Assembly. 

Legislative  Council. — The  Legislative  Council  is  composed  of  18 
members,  elected  for  6  years  by  the  voters  in  15  electoral  districts,  and 
receiving  an  annual  allowance  and  free  railway  passes.  Members  must 
be  30  years  of  age,  natural-born  or  naturalised  subjects  of  His  Majesty, 
and  must  not  be  judges  of  the  Supreme  Court,  persons  holding  any  office 
of  profit  under  the  Crown,  nor  Government  contractors.  Electors  are 
all  natural-born  or  naturalised  subjects,  possessed  of  a  freehold  estate 
of  £10,  or  leasehold  of  £30  annual  value,  or  graduates  of  any  university 
in  the  British  dominions,  or  qualified  legal  or  medical  practitioners,  or 
ministers  of  religion,  or  officers  of  His  Majesty's  Army  and  Navy,  or 
retired  officers  of  the  Tasmanian  Volunteer  Force. 

HoiLse  of  Assembly. — The  House  of  Assembly  is  at  present  composed 
of  35  members,  elected  for  3  years  by  the  voters  of  the  35  electoral  dis- 
tricts, and  receiving  an  annual  allowance  and  free  railway  passes.  The 
members  of  the  House  of  Assembly,  as  in  the  case  of  members  of  the 
Legislative  Council,  must  not  be  judges  of  the  Supreme  Court,  persons 
holding  offices  of  profit  under  the  Crown,  nor  Government  contractors. 
Electors  must  be  British  subjects,  of  21  years  of  age,  and  resident  for 
12  months  in  the  State.  Women  have  the  franchise  as  well  as  men. 
Members  of  the  Commonwealth  Parliament  are  disqualified  for  a  seat 
in  either  House.  By  the  Constitution  Amendment  Act,  1906,  6  Edw.  vii.. 
No.  47,  Tasmania  is  divided  into  5  electoral  districts,  viz.,  Bass,  Darwin, 
Denison,  Franklin,  and  Wilmot,  each  prospectively  returning  6  members 
to  the  House  of  Assembly.  Electors  under  the  new  law  only  require 
6  instead  of  12  months'  residence  as  a  qualification  to  vote,  and  they 
must  be  on  the  electoral  roll.  Disqualifications  for  a  vote  for  members 
of  the  House  of  Assembly  are  as  follows : — being  of  unsound  mind,  being 
in  receipt  of  aid  from  any  public  charity  (except  receiving  medical 
attention  free  at  a  hospital),  and  being  attainted  of  treason,  convicted 
or  under  sentence,  or  subject  to  be  sentenced,  for  any  offence  punishable 
under  law  by  imprisonment  for  one  year  or  longer.  The  Act  also 
declares  the  following  offices  not  to  be  deemed  offices  of  profit,  viz. : — 

(1)  Master  Warden  and  Wardens  of  any  Marine  Board  in  Tasmania ; 

(2)  returning  officers  under  any  Act  regulating  election  of  members  of 
Parliament;  (3)  officers  or  members  of  the  Commonwealth  Defence 
Force  whose  services  are  not  wholly  employed  by  the  Commonwealth 
Government. 

For  comparison  with  the  constitution  of  the  Parliaments  of  the 
other  Commonwealth  States,  and  with  the  electoral  franchises  thereof, 
see  article  New  South  Wales.    The  provisions  as  to  the  reservation 
VOL.  XIII.  49 


762  TASMANIA 

of  Bills  for  His  Majesty's  pleasure,  and  as  to  the  Governor's  assent  or 
dissent  to  Bills  and  their  subsequent  disallowance  by  Order  in  Council 
(which  are  common  to  all  6  States),  are  described  in  that  same  article. 

Local  Government. — For  administrative  purposes  the  State  is  divided 
into  18  counties.  Under  the  Eural  Municipalities  Act  of  1865,  21 
Municipal  Councils  have  been  established,  consisting  of  7  elected 
members,  of  whom  2  retire  annually  for  2  successive  years  and  3 
triennially.  The  President  ("  Warden  ")  of  the  Council  is  elected  every 
year  by  the  councillors.  The  electorate  consists  of  all  adult  inhabitants 
of  both  sexes  whose  names  are  on  the  assessment  roll.  There  are  also 
23  Town  Boards  in  the  principal  townships,  and  in  districts  where  there 
are  no  municipalities  Eoad  Trusts  look  after  the  roads ;  Water  Trusts 
and  Cemetery  Trusts  look  after  the  water  supply  and  cemeteries 
respectively. 

Laws. — The  laws  of  Tasmania  are  of  English  origin.  A  revised 
edition  of  the  Statutes  of  Tasmania,  containing  all  the  Acts  from  1826 
to  1900  in  force  in  the  latter  year,  was  published  in  1904,  in  4  volumes, 
with  an  index.  For  each  subsequent  year  there  is  an  annual  volume  of 
statutes.  Certain  Imperial  statutes,  conferring  powers  on  the  legisla- 
ture of  Tasmania,  in  common  with  the  other  Commonwealth  States, 
are  referred  to  in  the  article  New  South  Wales  (sub -heading 
Laws)  (q.v.). 

Courts  of  Law. — Under  the  Charter  of  Justice  of  March  4,  1831  (see 
above),  the  Supreme  Court  of  Van  Diemen's  Land  (now  Tasmania)  was 
established ;  the  Court  is  now  regulated  by  various  Colonial  Acts  sub- 
sequent to  that  date.  The  Supreme  Court  is  constituted  by  a  Chief 
Justice  and  2  Puisne  Judges,  and  to  it  appeals  lie  from  inferior  Courts. 
For  the  powers  of  the  Supreme  Court  in  regard  to  grants  of  land,  see 
Moses  V.  Parker,  [1896]  App.  Cas.  245.  From  the  Supreme  Court  appeals 
lie  to  the  (Federal)  High  Court  of  Australia.  Formerly  an  appeal  lay 
from  the  Supreme  Court  of  Tasmania  direct  to  His  Majesty  in  Council, 
and  was  regulated  by  the  Charter  of  Justice  above  referred  to,  but,  as 
stated  in  the  article  Australia,  this  right  of  appeal  has  been  taken  away 
by  the  Commonwealth  Judiciary  Act,  1903.  There  are  also  Courts  of 
Petty,  General,  and  Quarter  Sessions,  the  latter  being  presided  over  by 
a  stipendiary  magistrate,  assisted  by  justices  of  peace. 

Application  of  Irrvperial  Acts. — The  Imperial  Acts  relating  to  the 
Constitution  of  the  State  and  those  conferring  express  legislative  powers 
on  the  Parliament  are  referred  to  above.  Tasmania,  as  all  the  other 
Commonwealth  States  and  New  Zealand,  was  a  party  to  the  agreement 
for  increasing  the  naval  force  for  the  protection  of  the  floating  trade  in 
Australasian  waters  (51  &  52  Vict.  c.  32).  It  remains  to  notice  various 
Orders  in  Council  by  which  under  statutory  powers  Imperial  Acts  have 
been  applied  to  Tasmania.  On  August  1,  1896,  the  Imperial  Coinage 
Acts  were  applied  to  Tasmania  and  the  five  other  Commonwealth  States 
by  the  same  Order  in  Council  (St.  E.  &  0.,  Eev.  1904,  vol.  ii.,  "Coin, 
Colonies,"  p.  28)  as  applied  them  to  the  other  Commonwealth  States  and 
to  New  Zealand.  Probates  granted  in  Tasmania  are  recognised  in  the 
home  Courts  {ibid.,  vol.  i.,  "  Administration,"  p.  4),  and  property  paying 
death  duties  there  is  exempted  from  payment  over  again  under  Sir  W. 
Harcourt's  Finance  Act  {ibid.,  vol.  iv.,  "  Death  Duties,"  p.  14).  By  Order 
in  Council  of  March  26  and  August  12,  1907  (St.  E.  &  0.,  1907,  Nos.  263, 
651,  pp.  773,  776).  repealing  former  Orders  in  Council,  the  provisions  of 
46  &  47  Vict.  c.  57,  s.  103  (now  replaced  by  7  Edw.  vn.  c.  29,  s.  91),  as 


TASMANIA  763 

to  patents,  trade  marks,  and  copyright  in  designs  have  been  applied  to 
the  whole  Commonwealth  of  Australia.  As  to  extradition,  the  Common- 
wealth Extradition  Act,  1903,  has  been  incorporated  with  the  Imperial 
Extradition  Acts  by  Order  in  Council  of  March  7,  1904  (St.  E.  &  0., 
1904,  p.  250),  and  for  the  purpose  of  inter-colonial  backing  of  warrants 
Tasmania  has  been  grouped  under  Part  II.  of  the  Fugitive  Offenders 
Act,  1881,  with  the  other  Commonwealth  States,  New  Zealand  and  Fiji 
(St.  E.  &  0.,  Eev.  1904,  vol.  v.,  "Fugitive  Criminal,"  p.  324).  As  to 
ships  and  shipping,  by  Order  in  Council  of  May  9,  1891  (ibid.,  vol.  viii., 
"Merchant  Shipping,"  p.  46),  as  amended  by  Order  in  Council  of 
October  22,  1906  (St.  E.  &  O.,  1906,  p.  397),  certificates  of  competency 
granted  by  the  Governor  or  other  proper  authority  for  the  time  being 
in  Tasmania  are  declared  to  be  equivalent  to  those  granted  by  the  Board 
of  Trade,  and  regulations  were  made  as  to  such  certificates.  By  Order 
in  Council  of  November  21, 1895  (St.  E.  &  0.,  1904,  vol.  viii.,  "  Merchant 
Shipping,"  p.  130),  certificates  for  passenger  steamers  granted  under 
Tasmanian  legislation  are  of  the  same  force  as  if  granted  under  the 
Imperial  Merchant  Shipping  Acts.  By  Order  in  Council  of  November  23, 
1893  (ibid.,  p.  42),  the  chief  Clerk  of  the  Customs  in  Tasmania  was,  in  addi- 
tion to  the  Collector  of  Customs,  constituted  a  registrar  of  British  ships. 
The  Mail  Ships  Act,  1891,  so  far  as  it  afiects  the  French  Convention, 
has  been  applied  to  Tasmania  by  Order  in  Council  of  February  2,  1895 
(ibid.,  vol.  X.,  "  Post  Office,"  p.  109).  By  Order  in  Council  of  March  18, 
1880  (ibid.,  vol.  v.,  "  Fortifications,  Colonies,"  p.  17),  certain  fortifications 
in  Tasmania  were  transferred  to  the  Governor  of  that  colony.  The 
Colonial  Solicitors  Act,  1900,  has  been  applied  to  Tasmania  by  Order 
in  Council  of  March  12,  1903  (ibid.,  vol.  xL,  "Solicitor,  Colonies,"  p.  44), 
as  regards  England  and  Ireland.  By  Order  in  Council  of  February  11, 
1907  (St.  E.  &  0.,  1907,  p.  980),  the  Colonial  Officers  (Leave  of  Absence) 
Act,  1894,  was  applied  to  the  whole  Commonwealth  of  Australia. 

[See  Colonial  Office  List;  Statesman's  Year-Book;  the  Tasmanian 
Statutes.] 


PRINTED   BF   WUXIAM  OBEEM  AND  SONS,   EDINBUBOH. 


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